[LOGO]
EQUIPMENT LOAN AND
GE CANADA SECURITY AGREEMENT
------------------ NO: 4155906001
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ #▇▇▇ -------------
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, TEL: (▇▇▇) ▇▇▇-▇▇▇▇, FAX: (▇▇▇) ▇▇▇-▇▇▇▇
CLIENT: LAC DES ILES MINES LTD.
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,▇▇▇▇▇▇▇ CONTACT: ▇▇▇▇▇▇ ▇▇▇▇▇▇
M5H 3P5 Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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EQUIPMENT LOCATION (if at address other than above) INSURANCE
MCLENNAN CANADA LTD.
MAIL: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ P (PLEASE SEE SCHEDULE C)
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ TRUST TOWER, BCE PLACE
THUNDER BAY, ONTARIO, CANADA, P7B 6T9 ▇▇▇▇▇▇▇
▇▇▇▇▇▇
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EQUIPMENT
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
SEE SCHEDULE A WHICH IS AN INTEGRAL PART OF THIS AGREEMENT.
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FINANCED AMOUNT FINANCING RATE: INSTALMENTS
Amount Advanced: 20,000,000.00 USD Variable Rate: Instalments: $ 1,181,798.08 USD
Insurance Premium: PRIME RATE PLUS 2.50% P.A. Instalment date:
Financing fees: --------------
Frequency: QUARTERLY
Changes in Prime Rate effective: No. of Instalments: 20
First Instalment date:
---------------
FINANCED AMOUNT: 20,000,000.00 =USD MONTHLY Original Term: 60 MONTHS
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ADDITIONAL PROVISIONS
SEE SCHEDULE B WHICH IS AN INTEGRAL PART OF THIS AGREEMENT.
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In consideration of the loan (the "Loan") by Lender (as defined below) to Client in the amount specified under the heading "Financed
Amount" above, the receipt of which Client hereby acknowledges, Client acknowledges itself indebted and promises to repay to Lender
the Financed Amount. Client also acknowledges that it has agreed to grant to Lender a security interest in the Equipment described
above to secure repayment of the Financed Amount on the terms and conditions set forth above, on pages 1, 2, 3 and 4 of document
15133E attached hereto, on all applicable schedules and other attachments hereto, all of which terms and conditions form a part of
this Equipment Loan and Security Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Equipment Loan and Security Agreement at Toronto in the province of
Ontario, this 28th day of June 2004.
LAC DES ILES MINES LTD. GE CANADA EQUIPMENT FINANCING G.P.
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("CLIENT") ("LENDER")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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TITLE TITLE
V.P. Finance & C.F.O
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SIGNATURE OF AUTHORIZED TITLE
14133E (12-95)
[LOGO]
GE CANADA SCHEDULE A
------------------ NO: 4155906001
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THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 28TH DAY OF JUNE 2004. [GRAPHIC OMITTED]
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EQUIPMENT
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UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
UNITS MODEL YEAR TYPE SERIAL NO. ENGINE S/N UNIT
NO.
One (1) 777A CATERPILLAR 1983 HAUL TRUCK 84A01243
201
One (1) 777A CATERPILLAR 1984 HAUL TRUCK 84A01317
98S02773 202
One (1) 777B CATERPILLAR 1985 HAUL TRUCK 4YC1025
4ZL00619 204
One (1) 777B CATERPILLAR 1985 HAUL TRUCK 4YC0654
99W01846 206
One (▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ HAUL TRUCK AFE
47APA30125 33144778 207
One (▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ HAUL TRUCK AFE
47APA30126 33144795 208
One (▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ HAUL TRUCK
AFE47APA30128 33145687 209
One (▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ HAUL TRUCK
AFE47APA30129 33146178 210
One (▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ HAUL TRUCK
AFE47APA30130 33146195 211
One (▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ HAUL TRUCK
AFE47APA30131 33146185 212
One (▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ HAUL TRUCK
AFE47APA30187 33149405 214
One (1) 16G CATERPILLAR 1990 GRADER 93U03108
70V21617 308
One (1) 16H CATERPILLAR 2001 GRADER 6ZJ00939
41Z20233 309
One (1) TC7H064 2001, GMC Lube Truck ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ 140
One (1) D10R CATERPILLAR 2002 DOZER AKT00251
5JJ00481 408
One (1) 966E CATERPILLAR 1989 LOADER 99Y06431
3406 501
One (1) WA1200 KOMATSU 2000 LOADER 50003
33144088 504
One (1) PC4000 DEMAG 2000 SHOVEL8152 33145419
603
One (1) PC5500 DEMAG 2000 SHOVEL15011 (▇)▇▇▇▇▇▇▇▇
(2)33144873 604
One (1) 375LME CATERPILLAR 1995 EXCAVATOR
1 / 3
[LOGO]
GE CANADA SCHEDULE A
------------------ NO: 4155906001
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THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 28TH DAY OF JUNE 2004.
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EQUIPMENT
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One (1) 20-R30TT 1986 ELECTRIC FORK LIFT 20-223-C
800
One (1) ▇▇▇▇▇▇ FORK LIFT 8627 801
One (1) 525B-4HL FORK LIFT - JCB 525B41276023
239438S 802
One (1) 426B CATERPILLAR 1989 BACKHOE 7BC02973
V32349T 803
One (1) 938F CATERPILLAR 1991 LOADER 1KM00553
804
One (1) 245B CATERPILLAR 1989 EXCAVATOR 1SJ00149
11N15989 805
One (1) 450 ▇▇▇▇ DEERE DOZER 249052T 806
One (1) FORD 9000 1989 SAND/WATER TRUCK
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ 4MG33519 808
One (1) WESTERN STAR 1996 WATER TRUCK
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ N14330E 809
One (1) IT28-B CATERPILLAR LOADER 1HF02386
45V09731 810
One (1) FORD L8000 w/14T BOOM 1991 BOOM TRUCK-MNTC
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ 811
One (1) ▇▇▇▇▇▇ ▇▇▇▇▇▇ 2000 WELDER ON 108 Truck
LA350569 YDZXL057011 812
One (1) ORO DESIGN/KUBOTA D905 2001 PRESSURE
WASHER PUMP-001029 XN2171 813
One (1) INTERNATIONAL 1993 BOOM TRUCK-MILL
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ 814
One (1) LK8M42 1999 LIFT KING FORK-LIFT LT0528
AS31426U106592E 815
One (1) 763 G SKID-STEER LOADER 2001 BOBCAT - MILL
512260440 V2203-IE3160 816
One (1) 450 AJ 1999 JLG LIFT 80403 817
UNITS MODEL YEAR TYPE SERIAL ▇▇. ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇
▇▇.
▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇ W/M -MANIPULATOR
3LD1NAAYA-01 818
One (1) GMC C7500 MODEL#3126 w/MILLERAIR PAK
WELDING ▇▇▇▇ ▇▇▇▇▇ # ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ TRUCK
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ 8YL21353 819
One (1) T-35S 1999 ▇▇▇▇▇▇ MINI EXCAVATOR
N53520141 X5ZXLO1 820
One (1) 980C TIRE MANIPULATOR Kal-Tire
2/3
[LOGO]
GE CANADA SCHEDULE A
------------------ NO: 4155906001
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THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 28TH DAY OF JUNE 2004.
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EQUIPMENT
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UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
One (1) D55SP DRILTECH 2000 DRILL 732507 BDT0035
901
One (1) D55SP DRILTECH 2000 DRILL 732508 4CR01256
902
One (1) D55SP DRILTECH 2000 DRILL 732509 BDT00299
903
One (1) D55SP DRILTECH 2000 DRILL 732510 4CR01256
904
LAC DES ILES MINES LTD. GE CANADA EQUIPMENT FINANCING G.P.
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("CLIENT") ("LENDER")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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TITLE TITLE
V.P. Finance & C.F.O
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SIGNATURE OF AUTHORIZED OFFICERS TITLE TITLE
14133E (12-95) 3 / 3
[LOGO]
GE CANADA SCHEDULE B
------------------ NO: 4155906001
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THIS SCHEDULE B IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 28TH DAY OF
JUNE 2004.
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ADDITIONAL PROVISIONS
---------------------
PREPAYMENT
Section 2.2 of the Agreement is deleted and replaced by the following:
2.2 Prepayment: Commencing 12 months from the date hereof, upon 10 business days
prior notice to Lender, Client may prepay on the anniversary date of the
agreement each year part of the then outstanding balance of the Financed Amount,
provided that the prepayment does not exceed 10% of the then outstanding balance
of the Financed Amount and that Client also pays all accrued interest, any
Overdue Payment and all other amounts owing under this Agreement at the time of
prepayment. Such prepayment shall be subject to a prepayment fee of $2,000.00
CDN per occurrence and Break Costs as determined below. Upon exercising such
option the Installment amount will amended to provide for equal payments over
the Original Term.
In addition, Client may at any time, upon 10-day prior notice to Lender, prepay
all, but not less than all, of the then unpaid outstanding balance of the
Financed Amount on the condition that such prepay amount shall not be derived
from an alternative debt facility, in addition to the payment to Lender of any
Overdue Payments, all other amounts owing under this Agreement and the "Break
Costs" determined as follows:
(a) if the Financing Rate is a variable rate, $2,000.00CDN, or
(b) On the Prepayment Date, if the Interest Rate is a Fixed Interest Rate, the
Borrower shall pay to the Lender the greater of (a) $0 or (b) the amount
obtained by (i) discounting the remaining payments on the Loan and the balloon
payment, if any, at the Current Yield less (ii) the amount obtained by
discounting the remaining payments in respect of the Loan and the balloon
payment, if any, at the Original Yield.
The Borrower acknowledges that the prepayment premium represents a fair and
reasonable compensation for the loss that the Lender may sustain from any
prepayment or acceleration of the Loan Amount.
"Current Yield" means the then current Treasury Note Rate applicable for a
Duration equal to the then remaining Duration of the transaction, at the time
the prepayment option is exercised. "Original Yield" means the Treasury Note
Rate used at the time the Interest Rate was fixed to determine the fixed loan
payments. "Treasury Note Rate" means the yield on the applicable US Treasury
Note published in the edition of the Wall Street Journal on the Monday preceding
disbursement or occurrence of rate fixing.
"Duration" means the average maturity of the loan payments (including balloon
payment, if any) which is measured by calculating the sensitivity of the
outstanding principal of the Loan to a one (1) basis point change in the
Interest Rate of the Loan
Client acknowledges that the Break Costs represent a fair and reasonable
pre-estimate of the compensation for the loss that the Lender may sustain from
any prepayment or acceleration of the Financed Amount.
.......................
IRREGULAR PAYMENTS
Notwithstanding the amount of each Installment stated on the face hereof, the
Installments are comprised of a fixed principal component of $1,000,000.00 USD
plus an interest component according to the LIBOR Rate as defined herein.
.......................
CONVERSION CLAUSE
1 / 3
[LOGO]
GE CANADA SCHEDULE B
------------------ NO: 4155906001
-------------
THIS SCHEDULE B IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 28TH DAY OF
JUNE 2004.
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ADDITIONAL PROVISIONS
---------------------
All payments due under this agreement shall be made in US Dollars, unless
otherwise indicated.
If, any payment due hereunder is paid to, or recovered by, Lender in a currency
(the "other currency") other than US Dollars for any reason whatsoever
(including, without limitation, as a result of a judgment against Client or the
liquidation of Client's assets), then, to the extent that such payment (or, in
the case of a liquidation, the value as of the latest date for the determination
of liabilities permitted by the applicable law) falls short of the applicable
amount which is required to be paid hereunder based upon the rate of exchange
for the other currency, Client shall, as a separate and independent obligation,
fully indemnify Lender against the amount of the shortfall. For the purposes of
this paragraph, the term "rate of exchange" means the rate at which you are
able, at 11:00 a.m. (Toronto time), on the relevant date to purchase US Dollars
in Toronto with the other currency.
......................
PERMITTED ENCUMBRANCES
Section 5.2 is amended to provide that marketable title is subject to Permitted
Encumbrances.
......................
EQUIPMENT MAINTENANCE
Subsection 7.1(c) is deleted in its entirety and replaced with the following:
" the Client shall maintain the Equipment in accordance with standards
consistent with and customary to industry practice and in accordance with
manufacturer's service bulletins and any mandatory government requirements."
......................
INSURANCE
The word "reasonably" is inserted between "may" and "require" in the first
sentence of subsection 9.1(b).
......................
LIENS
The words ", except for Permitted Encumbrances." shall be added to the end of
section 11.
......................
DEFAULT
In Section 13(i) of the ▇▇▇▇: delete the opening 3 1/2 lines : "if ownership of
or control...death of the shareholder" and substitute:
if, without the consent of Lender, such consent not to be unreasonably withheld,
Client consolidates, amalgamates or merges with another entity or enters into
any corporate reorganization or other transaction intended to effect or
otherwise permit a change in its existing corporate or capital
structure,_(continue with existing language) or Client passes any resolution...
......................
ENTIRE AGREEMENT
The words "and the General Security Agreement" are added to the end of section
29.1.
......................
Add the following new Section 42 at the end:
2 / 3
[LOGO]
GE CANADA SCHEDULE B
------------------ NO: 4155906001
-------------
THIS SCHEDULE B IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 28TH DAY OF
JUNE 2004.
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ADDITIONAL PROVISIONS
42. Acknowledgment
Lender acknowledges that Client has or will deposit up to $2,000,000
with Bank of Montreal as collateral for foreign exchange obligations of Client
to Bank of Montreal.
......................
OPTION TO FIX RATE
If the Financing Rate is a Floating Rate, Client has one option, exercisable at
any time during the term by giving a 10-day prior notice to Lender, to fix the
Financing Rate for the remainder of the term, upon payment to Lender of a fee of
$1,500.00 CDN. The Financing Rate shall be determined by the Lender in
accordance with the characteristics of the transaction evidenced by this
Agreement.
......................
TRANSACTION FEE
Client agrees to pay a transaction fee of $100,000.00 USD (plus applicable
taxes) upon signature hereof.
......................
PRICING INDEX "LIBOR"
DEFINITION AND AMENDMENTS TO THE AGREEMENT
FLOATING (LIBOR) IN U.S. DOLLARS:
The words "Prime Rate" whenever used herein are replaced by the words "LIBOR
Rate", which means, on any day, the annual rate of interest equal to one-month
U.S. dollar LIBOR as published by the Wall Street Journal the 1st calendar day
of the current month.
"Permitted Encumbrances" are described in the General Security Agreement.
......................
SECOND POSITION ON INVENTORIES AND RECEIVABLES
Upon request, Lender shall subordinate its interests in Inventories and
Receivables of Client as defined in the General Security Agreement dated June
28th, 2004, provided that such Inventories and Receivables are not proceeds of
the Equipment.
LAC DES ILES MINES LTD. GE CANADA EQUIPMENT FINANCING G.P.
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("CLIENT") ("LENDER")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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TITLE TITLE
V.P. Finance & C.F.O.
--------------------------------------------------------------- ----------------------------------------------------------------
SIGNATURE OF AUTHORIZED OFFICERS TITLE TITLE
14133E (12-95) 3 / 3
3 / 3
GE [LOGO]
GE CANADA
EQUIPMENT FINANCING EQUIPMENT LOAN AND SECURITY AGREEMENT
1. INTERPRETATION
1.1 For the purpose of this Agreement:
(a) "Accrued Liability" at any time means the amount equal to the
sum of the Financed Amount, any Prepayment Bonus and all other
amounts then payable hereunder, including without limitation,
any Overdue Payment and accrued interest.
(b) "Affiliate" means in respect of a person, a person or persons
that, directly or indirectly through one or more intermediaries,
control, are controlled by, or are under common control with,
such person, and for the purposes of this definition, "control"
means the power to direct or cause the direction of the
management and policies of a person whether through the
ownership of voting securities or otherwise, and "person" means
an individual, corporation, partnership, joint venture,
association, trust or unincorporated organization or any
trustee, executor, administrator or other legal representative.
(c) "Agreement" means this Equipment Loan and Security Agreement and
any applicable schedules hereto, unless the context otherwise
requires, and "hereof", "herein", "hereby", "hereunder" and
similar expressions refer to this Agreement.
(d) "business day" means a day when the office of Lender at the
address stated on the face hereof is open for business.
(e) "Claims" has the meaning assigned in Section 16.
(f) "control" has the meaning attributed to it in the CANADA
BUSINESS CORPORATIONS ACT.
(g) "Costs of Disposition" means all costs, disbursements, fees,
commissions and other expenses (including legal fees and
expenses) which Lender may incur, pay or be liable for in
connection with recovering possession of, dismantling, removing,
transporting, repairing, processing, reconditioning, storing,
selling, leasing or otherwise disposing of Equipment.
(h) "Client" means the client of Lender stated on the face hereof.
(i) "Default" means any of those events or circumstances specified
in Section 13.
(j) "Equipment" means the items of personal property described on
the face hereof and, when required by the context, individual
items thereof.
(k) "Equities" means existing or future rights of counterclaim,
defence, set-off, compensation, abatement or offset, legal or
equitable.
(l) "Financed Amount" means the amount stated as such on the face
hereof owing by Client to Lender or the unpaid outstanding
balance thereof, as the context requires.
(m) "Financing Rate" means the rate per annum stated as such on the
face hereof.
(n) "Instalments" means the periodic repayment instalments of the
Financed Amount, together with interest calculated at the
Financing Rate as provided on the face hereof, such instalments
stated on the face hereof.
(o) "Lender" means the Lender stated on the face hereof.
(p) "Lien" means any lien, privilege, mortgage, pledge, hypothec,
charge, security interest, attachment, assignment, seizure,
sequestration, distress, levy or other encumbrance of any nature
or kind whatsoever.
(q) "Loss of Equipment" means:
(i) a total or constructive total loss of Equipment, or
damage thereto, or theft thereof which, in the
reasonable opinion of Lender, renders it impossible or
impractical to use the Equipment for its intended
purpose; or
(ii) expropriation or confiscation of Equipment by any
authority absolutely or for more than 180 days.
(r) "Obligation" means any obligation by Client to pay any amount
owing hereunder, including the Financed Amount, Overdue Payments
and all other amounts owing hereunder, or to perform any other
obligation of Client hereunder or which is secured hereunder.
(s) "Overdue Payment" means any amount owing by Client hereunder and
any sum disbursed by Lender pursuant to Section 15 which is not
paid when due hereunder, or any portion thereof.
(t) "person" means any natural person, corporation, firm,
partnership, trust, sole proprietorship or governmental agency,
authority or other entity, however constituted or designated.
(u) "Pledge" means to mortgage, charge, pledge, hypothecate, assign
or grant a security interest and the security resulting
therefrom and, as a noun, has the corresponding meaning.
(v) "Prepayment Bonus" means a prepayment bonus determined in
accordance with Section 2.2.
(w) "Prime Rate" means the yearly rate of interest which National
Bank of Canada announces from time to time in Canada as its
prime lending rate which is a reference rate for demand loans in
Canadian dollars to corporate borrowers.
(x) "Supplier" means any manufacturer, supplier, vendor of or dealer
in Equipment or any other person from whom Client has acquired
any of the Equipment.
(y) "Taxes" means any and all taxes, imposts, levies, fees, duties
and charges imposed by any taxing authority on Lender, Client,
the Equipment, its purchase, sale, ownership, security interest
thereon, delivery, possession, operation or use including,
without limitation, sales, excise, use, health services,
property, goods and services, business transfer and value added
taxes (including any penalties or interest based on late or
non-payment), but excluding taxes imposed on or measured by
Lender's overall net income.
(z) "Warranties" means any and all warranties, guarantees,
representations, service contracts, contracts to stock spare
parts and similar agreements, oral or written, express, implied
or statutory, relating to Equipment.
1.2 In this Agreement, unless the context otherwise requires, the singular
includes the plural and vice-versa and words importing gender include
each gender.
1.3 All references herein to statutes include the statute as it may be
amended, restated or replaced with legislation of comparable effect.
1.4 Acts to be performed hereunder on non-business days shall be performed
on the following business day.
2. INSTALMENTS
2.1 Client hereby acknowledges that it has borrowed from Lender and is
thereby, or has otherwise become, indebted to and agrees to repay to
Lender, at the address of Lender stated on the face hereof or such other
place notified by Lender to Client, the Financed Amount, together with
interest thereon, by paying the Instalments stated on the face hereof.
Unless otherwise stated, Instalments are due on the dates stated on the
face hereof in each month, or other period (or the last day of the
month, if there is no corresponding date), in arrears, throughout the
term hereof. On the final Instalment date, Client shall pay Lender the
outstanding balance of the Financed Amount, all accrued and unpaid
interest thereon and all other amounts payable hereunder.
2.2 Client may at any time prepay the Financed Amount in whole or in part
upon payment to Lender of a Prepayment Bonus determined as follows:
(a) if the Financing Rate is a variable rate based on Prime Rate,
the bonus shall be three months' interest on the amount prepaid
calculated at the Financing Rate in effect at the time of
prepayment, or
(b) if the Financing Rate is a fixed rate, the bonus shall be either
(i) three months' interest on the amount prepaid calculated at
the Financing Rate (the "Minimum Bonus"), if the Financing Rate
does not exceed the Prime Rate in effect at the time of
prepayment ("Current Prime"), or (ii) the greater of (A) the
Minimum Bonus or (B) the amount determined as the product of (x)
the Financing Rate less Current Prime times (y) the amount
prepaid times (z) the fraction of the number of days to elapse
until the final Instalment date, disregarding prepayments,
divided by 365, if the Financing Rate exceeds Current Prime.
Any portion of the Financed Amount prepaid shall be applied to the
remaining Instalments in inverse order of maturity. No part of the
Prepayment Bonus shall be applied in reduction of said remaining
Instalments. If a Default or a Loss of Equipment occurs, the Prepayment
Bonus shall also be payable by Client and shall be calculated by
reference to the outstanding balance of the Financed Amount at the time
of such Default or Loss of Equipment, as applicable.
3. INTEREST
3.1 The Financed Amount shall bear interest from the date hereof until paid
in full to Lender (as well before as after maturity, demand, Default or
judgment) at the Financing Rate.
3.2 In addition to interest payable under Section 3.1, each Overdue Payment
shall bear interest from the date due until paid in full to Lender (as
well before as after demand, Default or judgment) at the rate of 12% per
annum, calculated as specified in Section 3.3.
3.3 Interest payable hereunder shall accrue from day to day, be payable in
arrears on each Instalment date and be computed upon the daily
outstanding balance of the Financed Amount or Overdue Payment, as
applicable, and shall be calculated on the basis of the number of days
elapsed in a 365-day year. The yearly rate of interest to which each
rate of interest expressed
--------------------------------------------------------------------------------
1
herein is equivalent is the product of (a) such rate times (b) the
fraction of the number of days in the year divided by 365.
3.4 If the Financing Rate is a variable rate based on Prime Rate, a change
in Prime Rate automatically changes the rate of interest payable
hereunder to the same extent and in the same manner effective with the
frequency stated on the face hereof. Lender shall not be obliged to
notify Client of any such change, any right to notice being hereby
irrevocably waived by Client.
4. TITLE, OWNERSHIP
Title to, ownership of, and all property in Equipment shall remain with
Client, but subject always to the security interests and other
provisions hereof, and at Client's sole risk, until full payment in cash
of all amounts repayable hereunder; prior to such payment, Client's
rights therein are to quiet enjoyment and use on the terms and
conditions of this Agreement so long as a Default has not occurred.
5. SECURITY INTEREST AND WARRANTIES AS TO EQUIPMENT
5.1 In consideration of the Loan, Client hereby mortgages, hypothecates,
charges by way of a first fixed charge, and grants to Lender a
continuing security interest (herein collectively called a "security
interest") in Equipment and Pledges in favour of Lender all insurance
claims and all proceeds (including proceeds of proceeds) therefrom with
respect to any loss or damage to Equipment or any lease or rental of
Equipment, all to secure repayment of the Financed Amount and other
Obligations of Client.
5.2 Client represents and warrants to Lender that the Client has good and
marketable title to Equipment, free and clear of all Liens, except for
the security interests of Lender hereunder. Client agrees to comply with
all Warranties accruing to the Client pertaining to Equipment; however,
any failure by any vendor to Client of Equipment to comply with any
Warranty shall not affect Client's Obligations to Lender hereunder.
6. PERSONAL PROPERTY AND WAIVERS
6.1 Equipment shall at all times be and remain moveable personal property.
Notwithstanding any purpose for which Equipment may be used or that it
may become affixed or attached to land or any structure thereon,
Equipment shall remain subject to all rights of Lender hereunder as if
it were not so affixed or attached.
6.2 Client agrees to obtain a waiver, if required by and in a form
satisfactory to Lender, from any landlord, mortgagee, hypothecary
creditor or other encumbrancer of the premises where Equipment is
situated (and prior to its becoming affixed if it is to be affixed).
7. MAINTENANCE, USE, OPERATION, ALTERATIONS, UPGRADES, ETC.
7.1 Client shall at its own expense:
(a) maintain Equipment in good operating condition, repair and
appearance, ordinary wear and tear only excepted;
(b) comply with all recommendations or requirements of Supplier
regarding Equipment so as to preserve all Warranties; and
(c) at Lender's request, enter into a maintenance agreement for
Equipment for the full term of this Agreement with Supplier or a
competent service and maintenance agent approved by Lender.
7.2 Client shall not, without Lender's consent, make any alterations,
additions, accessions or attachments to Equipment. Such consent will
only be granted if such changes:
(a) do not materially decrease the value of Equipment or limit,
interfere with or frustrate its intended use;
(b) do not prejudice or adversely affect any Warranties; and
(c) are free from, and do not subject Equipment to, any Lien.
7.3 All replacement parts and components, alterations, additions, accessions
and attachments to Equipment shall automatically become subject to the
security interests created hereby as soon as they are acquired by or on
behalf of Client.
7.4 Client shall affix and keep affixed to Equipment any labels supplied by
Lender identifying its security interests in Equipment.
8. INSPECTION
Any representative of Lender shall have the right to inspect Equipment
at all reasonable times upon notice to Client.
9. INSURANCE
9.1 Client shall at its own expense place and maintain with insurers
acceptable to Lender:
(a) comprehensive all risks insurance on Equipment for the greater
of the Financed Amount or the full replacement value of the
Equipment. Such insurance shall include: (i) a loss payable
clause in favour of Lender and (ii) a waiver of subrogation
clause in favour of Lender; and
(b) general public liability and property damage insurance with
limits of liability at least equal to $1,000,000 or such greater
amount as Lender may require. Such insurance shall extend to all
liabilities of Client under this Agreement arising out of its
use or possession of Equipment and to any potential vicarious
liability of Lender as holder of security interests in Equipment
created hereby.
9.2 All such policies of insurance shall be in place at the effective date
of this Agreement and shall contain endorsements providing that: (a) 30
days' written notice shall be given to Lender before the policy lapses
or is materially altered or cancelled; (b) the insurance shall be
primary and not contributory; (c) Lender's interests therein shall not
be invalidated or otherwise adversely affected by any act or omission,
deliberate, negligent or otherwise, of Client or its agents, servants or
employees (the so-called "standard mortgage clause"); (d) Lender shall
not be responsible for payment of any premiums; and (e) Lender may elect
to have all proceeds of loss payable only to itself.
9.3 Client shall supply Lender with certified copies of all insurance
policies, endorsements or other evidence of the required coverage
satisfactory to Lender within 30 days of the effective date of this
Agreement and on request.
9.4 In the event of damage to any item of Equipment amounting to Loss of
Equipment, Lender shall be entitled to receive immediate payment of the
amount equal to the Accrued Liability with respect to such item of
Equipment. Lender may retain any monies received from the insurance
proceeds in an amount equal thereto, Client remaining liable for any
deficiency.
10. TAXES, ETC.
Client shall have the sole responsibility for and shall duly and
punctually pay all Taxes and all licence and similar fees payable at any
time upon, or in respect of, Equipment, this Agreement and any payments
or transactions contemplated hereunder.
11. LIENS
Client shall keep Equipment free of all Liens.
12. LAWS AND REGULATIONS
Client is and shall continue to be in compliance with all laws and
regulations relating to use, operation or possession of Equipment or the
security interests therein in favour of Lender, and those relating to
the prevention of money laundering and terrorism.
13. DEFAULT
It shall be a Default under this Agreement if:
(a) Client fails to pay any Instalment within 10 days after its due
date;
(b) any representation or warranty of Client made herein or in any
instrument or document delivered to Lender in connection
herewith is false or materially incorrect or misleading;
(c) any insurance coverage required to be obtained and maintained by
Client under this Agreement shall lapse, expire or be cancelled;
(d) Client defaults in any other Obligation, or in any obligation
under any other agreement with Lender or any Affiliate of Lender
and such default continues for 10 days after notice thereof by
Lender or such Affiliate, as applicable, to Client;
(e) any act of bankruptcy takes place respecting Client, or any
proceeding, petition or notice, voluntary or involuntary, is
commenced, made, given or filed, as the case may be, by the
Client or any other person, under any present or future statute
or law relating to bankruptcy, insolvency or relief from or
compromise or arrangement with creditors of Client;
(f) Client ceases or threatens to cease to carry on business or
makes or proposes to make any sale of the whole or any
substantial portion of its assets in bulk, or otherwise out of
the normal course of business;
(g) any execution, sequestration, expropriation or similar process
is brought or threatened, by way of notice or otherwise,
against, or a distress or analogous process is levied upon the
whole or any part of the property of Client or Equipment;
(h) any trustee, receiver, interim receiver, administrator, manager
or similar official is appointed with respect to all or any part
of the property, assets or undertaking of Client, whether
pursuant to any private instrument or agreement or by order of
any court;
(i) if ownership of or control and direction over the assets or
undertaking of Client or the majority of its voting shares
changes, by amalgamation, merger, sale, transfer of shares or
otherwise, except pursuant to death of the shareholder, or
Client passes any resolution concerning any matter referred to
in paragraph (e) or with respect to, or any proceedings,
voluntary or involuntary, are commenced under, any present or
future law relating to amalgamation, liquidation, winding-up or
dissolution;
(j) an event occurs which, in the opinion of Lender, could
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), business, operations,
assets, liabilities or prospects of Client, Client's ability to
perform any Obligation, or any obligation under any other
agreement with Lender or any Affiliate of Lender, or on the
rights and remedies of Lender thereunder, and continues for 10
days after notice thereof by Lender or such Affiliate, as
applicable, to Client; or
(k) any event or circumstance described in any of paragraphs (c) and
(e) through (j) inclusive occurs with respect to any guarantor
or surety of Client respecting this Agreement or any person who
controls Client or any Affiliate of Client. A Default under this
Agreement shall be deemed a default under all other present and
future agreements entered into between Client and Lender or any
Affiliate of Lender.
14. LENDER'S REMEDIES ON DEFAULT
Upon Default, Lender shall be entitled to do one or more of the
following:
(a) declare this Agreement to be in default (with or without
terminating this Agreement) whereupon all Obligations shall be
immediately due, payable and enforceable without any notice or
demand whatsoever;
(b) terminate this Agreement;
2
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(c) declare any or all of the Obligations to be immediately due and
payable, or be subject to immediate performance, as the case may
be, without presentment, protest or notice of dishonor, all of
which are expressly waived;
(d) take possession of Equipment, without demand, notice or legal
proceeding and enter on any premises of Client or any other
person for such purpose;
(e) sell, lease or otherwise dispose of Equipment by public or
private transaction for such consideration payable immediately
and/or deferred and on such terms and conditions as Lender in
its discretion determines;
(f) whether or not this Agreement may have been or be deemed to have
been terminated, demand, ▇▇▇ for and recover the amount equal to
the Accrued Liability, less, if applicable, the net proceeds to
Lender derived from the sale, lease or other disposition of the
Equipment, after deducting all Costs of Disposition; and
(g) exercise any other rights or remedies and/or take any
proceedings available to Lender hereunder, at law or in equity.
In lieu of selling, leasing or otherwise disposing of Equipment, Lender
may retain Equipment and cause Equipment to be valued by a qualified
appraiser selected by it and such value shall be substituted for and
deducted as net proceeds to Lender under subparagraph (f) of this
Section. Proceeds of sale, lease or disposal need be deducted only when
received, unless Lender elects to take the present value of payments to
be received, discounted at the Financing Rate then in effect, compounded
monthly.
15. LENDER'S RIGHTS TO REMEDY DEFAULTS
If Client fails to perform or comply with any Obligation, Lender may,
but has no obligation to, perform same in the name of Client or Lender
and make all necessary disbursements in connection therewith, which
shall be reimbursed by Client immediately on demand. Lender is hereby
appointed Client's lawful attorney to take any such action in Client's
name.
16. CLIENT'S GENERAL INDEMNITIES
Client shall indemnify and save harmless Lender from and against all
existing or future losses, costs, charges, expenses, liabilities,
claims, demands, penalties, damages, suits, actions and causes of action
of every nature and kind whatsoever, including strict liability in tort
or in delict (collectively, "Claims") sustained or suffered by Lender,
or for which Lender may become liable, resulting from or arising out of:
(a) Lender's lawful exercise or performance of its rights or
obligations under this Agreement;
(b) the holding by Lender of a security interest in the Equipment;
(c) any Default;
(d) any personal injury or property damage or other commercial loss
arising out of the sale or delivery to, installation, ownership,
use, operation, maintenance, condition, return, removal and
re-delivery of Equipment; or
(e) any use or operation of Equipment which infringes any patent or
other industrial or intellectual property right, unless caused
by the gross negligence or willful misconduct of Lender, its
employees, servants or agents.
17. ADMINISTRATIVE FEES AND EXPENSES
Client shall pay Lender on demand Lender's prevailing fees and all costs
and disbursements (including legal fees and expenses) certified by
Lender as having been incurred or made in connection with the
enforcement or preservation of any right or remedy arising on Default or
in connection with the rendering of financial services under this
Agreement including, without limitation, for processing of payments and
rendering statements to Client.
18. PRE-AUTHORIZED PAYMENTS
Client shall execute and deliver to Lender from time to time upon
request pre-authorized payment orders in such form as Lender may
reasonably request. Lender is hereby authorized to deliver such orders
to the financial institution named therein. Client hereby appoints
Lender its lawful attorney to take all action contemplated by such
payment orders to receive payment of any amount due under this
Agreement. Lender may decline any other form of payment.
19. LOCATION OF EQUIPMENT
19.1 Except as otherwise expressly permitted hereunder, Client shall not part
with possession of Equipment nor remove any of same from Canada.
19.2 Client covenants that Equipment will continue to be located where stated
on the face hereof, or at any other location agreed to in writing by
Lender.
20. ASSIGNMENT AND LEASING
Client shall not assign any rights hereunder and Client shall not sell
or attempt to sell Equipment nor lease or rent or attempt to lease or
rent Equipment, in any case without the prior consent of Lender, and
such consent may be withheld by Lender in its sole and unfettered
discretion. No action aforesaid by Client shall relieve Client of any of
its Obligations.
21. CLIENT'S GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Client represents and warrants to and covenants with Lender that: (a) if
Client is a body corporate, it is and will continue to be a body
corporate or other legal entity duly and validly incorporated or
otherwise established, organized and existing in good standing under the
laws of its jurisdiction of incorporation or establishment, with all
necessary power and authority to execute, deliver and perform this
Agreement; (b) if Client is a body corporate, all of the transactions
contemplated herein have been and will be duly authorized by all
necessary action, are not and will not be in conflict with the
constating documents or by-laws of Client or any indenture, instrument,
agreement or undertaking to which it is or will be a party or by which
it or its assets are or may become bound; (c) this Agreement is and will
continue to be the legal, valid and binding obligation of Client,
enforceable against it in accordance with its terms; d) all Information
as defined in Section 41 provided by Client to Lender is accurate; and
e) all payments to Lender are and will be derived from legal sources.
Client agrees to furnish to Lender a copy of its most recent annual
financial statements, audited if applicable, promptly upon availability
and in any event, within 90 days of each financial year-end. Upon
request by Lender, Client agrees also to furnish its quarterly financial
statements promptly upon availability and, in any event, within 60 days
of each financial quarter-end.
22. STATUTORY WAIVERS AND ACKNOWLEDGEMENT
22.1 Client waives its right to receive a copy of any financing statement or
financing change statement registered by Lender and of any related
verification statement.
22.2 Client waives, to the fullest extent permitted by law, the application
of the provisions of a) THE LIMITATION OF CIVIL Rights Act
(Saskatchewan); and b) THE DISTRESS ACT (Manitoba). Client agrees that
the provisions of this Agreement are commercially reasonable.
23. NO SET-OFF - EXCLUSION AND ASSIGNMENT OF WARRANTIES
23.1 CLIENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL EQUITIES AGAINST ANY
INSTALMENT AND OTHER AMOUNT DUE TO LENDER HEREUNDER AND AGREES TO PAY
EACH SUCH INSTALMENT AND OTHER AMOUNT WITHOUT REGARD TO ANY EQUITIES.
NEITHER DEFECTS IN, DAMAGE TO, NOR LOSS OR DESTRUCTION OF EQUIPMENT
SHALL TERMINATE THIS AGREEMENT OR REDUCE CLIENT'S OBLIGATIONS HEREUNDER,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN.
23.2 CLIENT REPRESENTS AND WARRANTS TO AND COVENANTS WITH LENDER THAT
EQUIPMENT IS AND WILL BE USED FOR COMMERCIAL, INDUSTRIAL OR BUSINESS
PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD OR FARMING
PURPOSES;
23.3 (A) LENDER SHALL NOT BE BOUND BY OR BE DEEMED TO HAVE MADE OR BE LIABLE
FOR ANY REPRESENTATION, WARRANTY OR PROMISE MADE BY SUPPLIER OR
OTHERWISE; (B) LENDER SHALL NOT BE LIABLE FOR ANY FAILURE OF EQUIPMENT
INCLUDING ANY LATENT DEFECT OR ALLEGED FUNDAMENTAL BREACH OF THIS
AGREEMENT; (C) NEITHER LENDER NOR ANY OF ITS EMPLOYEES, SERVANTS OR
AGENTS HAS MADE AND DOES NOT NOW MAKE ANY REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO EQUIPMENT OR ANY
INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS THEREIN INCLUDING, WITHOUT
LIMITATION, THE DESIGN, SPECIFICATIONS, CONDITION, QUALITY,
MERCHANTABILITY OR FITNESS FOR CLIENT'S PURPOSES AND (D) LENDER SHALL
HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL
OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, ACTUAL OR ANTICIPATED, OR
FOR ANY DAMAGES BASED ON STRICT OR ABSOLUTE TORT OR DELICTUAL LIABILITY
OR LENDER'S OR SUPPLIER'S NEGLIGENCE. NOTHING HEREIN SHALL DEPRIVE
CLIENT OF ITS RIGHTS AGAINST SUPPLIER OR ANY PERSON OTHER THAN LENDER.
CLIENT SHALL MAKE ANY CLAIMS WITH RESPECT TO EQUIPMENT DIRECTLY AGAINST
SUPPLIER.
23.4 IF EQUIPMENT IS SEIZED OR SOLD BY LENDER, ALL WARRANTIES OF SUPPLIER AND
RIGHTS TO ALL SOFTWARE, OTHER INTELLECTUAL AND INDUSTRIAL PROPERTY
LICENSES ACCOMPANYING GOODS SHALL BE DEEMED ASSIGNED BY CLIENT TO
LENDER.
24. NOTICES
Any notice, demand, consent or other communication required or permitted
hereunder ("Notice") shall be in writing and may be delivered, or sent
by prepaid registered mail, or by telex, telecopier or other means which
produces a permanent written record (a "transmission"). Mailed Notice
shall be deemed to have been given two business days after mailing
provided there is no general disruption or stoppage of postal services
then in effect, in which case delivery shall be made by one of the other
methods permitted herein; delivered Notice shall be effective upon
delivery during business hours to an apparently responsible adult, and
transmissions shall be deemed to have been received at the opening of
the business day immediately following transmission. Addresses for
Notice shall be those addresses stated on the face hereof and may be
changed in accordance with the foregoing.
3
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25. REMEDIES CUMULATIVE
All rights and remedies of Lender hereunder are cumulative and not
exclusive or alternative and may be exercised by Lender separately or
together, in any order, sequence or combination.
26. FORBEARANCE, INDULGENCE AND WAIVERS
Forbearance or indulgence by Lender in any instance shall not constitute
a general waiver of the obligation under this Agreement to which the
same applies. Any waiver by Lender of its rights must be in writing and
shall not extend to any other obligation or right.
27. ALLOCATIONS
Client hereby irrevocably and unconditionally waives any present or
future right to allocate any payment made to Lender to any specific
Obligation due under this Agreement or under any other agreement with
Lender or any affiliate of Lender. Lender may allocate and apply any
payment received to any Obligation due hereunder or under any other
agreement with Lender or affiliate of Lender and may reverse, reallocate
and re-apply any such payment as many times and in such manners as
Lender from time to time sees fit. Payments received shall be allocated
upon receipt of legal tender or cleared funds. Lender is hereby
irrevocably authorized to combine and set off amounts payable by it to
Client with amounts owing to it from Client (in each case whether
matured or not and whether absolute or contingent) under the same or
different agreements.
28. TIME
Time is and shall remain of the essence of this Agreement.
29. ENTIRE AGREEMENT
29.1 There are no representations, warranties, covenants, agreements or
acknowledgements by Lender affecting the Financed Amount, the
Obligations, the Accrued Liability, this Agreement or Equipment, other
than expressed in this Agreement.
29.2 No agreement purporting to amend or modify this Agreement or any other
document, paper or writing relating hereto or to Equipment or connected
herewith shall be binding unless in writing signed by the parties
hereto.
30. SEVERABILITY
Any term, condition or provision of this Agreement which is deemed to be
void, prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be severed herefrom and ineffective to the extent of such
invalidity, prohibition or unenforceability, without in any way
invalidating the balance hereof.
31. NO MERGER IN JUDGMENT
The taking of any judgment by Lender under this Agreement shall not
operate as a merger or novation of any term or condition hereof or of
any obligation of Client or Lender hereunder.
32. FURTHER ASSURANCES AND POWER OF ATTORNEY
32.1 Client and Lender each shall do, execute and perform all such acts,
deeds, documents and things as may be reasonably required to enable
Lender to have the full benefit of all rights and remedies intended to
be reserved or created hereby. Lender is hereby appointed Client's
lawful attorney to complete and/or correct any information on the face
hereof or in any Schedule hereto.
32.2 Each power of attorney granted in this Agreement is granted with full
power of substitution, is irrevocable, is coupled with an interest,
shall survive termination of this Agreement and may be exercised during
any subsequent legal incapacity of Client or Lender.
33. CURRENCY
Unless otherwise stated in this Agreement, all sums of money payable
hereunder shall be paid in Canadian dollars.
34. SURVIVAL
Notwithstanding any other Section, any accrued Obligations, the
Obligations of Client under Sections 9.4, 10, 15, 16, 17, 22 and 27 and
all rights of Lender hereunder, whether accrued or not, shall survive
the termination or expiration of this Agreement and the payment of the
Accrued Liability and all other amounts payable hereunder.
35. SECTION HEADINGS
Section headings in this Agreement are for convenience of reference only
and do not affect the interpretation or construction hereof.
36. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon Lender
and Client, their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns and lessees. Lender
may assign or transfer in whole or in part its rights under this
Agreement or Equipment, and/or Pledge its rights hereunder or in
Equipment and any assignee, transferee or beneficiary of such Pledge
("Assignee") shall be unrestricted in the exercise of such rights.
Client shall recognize any such assignment, transfer or Pledge and shall
not assert against any Assignee any Claims or Equities which it may have
against Lender respecting this Agreement or Equipment and waives all
Claims and Equities against Assignee's rights to enforce this Agreement
based on Lender's alleged failure to perform same or Supplier's breach
of Warranties. Client shall not be entitled to assign its rights or
obligations hereunder.
37. CHOICE OF LAW
This Agreement shall be governed, construed, performed and enforced in
accordance with the laws of the Province where the address of Client is
located as stated on the face of this Agreement.
38. LANGUAGE
The parties hereto have expressly required that this Agreement and all
documents, agreements and notices related thereto be drafted in the
English language. Les parties aux presentes ont expressement exige que
le present contrat et tous les autres documents, conventions ou avis qui
y sont afferents soient rediges en langue anglaise.
39. JOINT AND SEVERAL LIABILITY
If more than one person executes this Agreement as Client their
obligations hereunder shall be joint and several and, where the context
so admits, each reference in this Agreement to "Client" shall include
reference to any one or more or all such persons and the acts or
omissions of and such persons shall bind all of them.
40. RECEIPT OF AGREEMENT
Client acknowledges receipt of an executed copy of this Agreement.
41. INFORMATION
Client hereby consents and authorizes Lender and its affiliates, agents,
contractors and representatives, at any time, a) to collect, verify,
use, communicate with and disclose to third parties (including credit
reporting agencies, financial institutions, creditors, vendors and other
persons) any credit, financial and other information, including personal
information (as applicable) and information related to the credit
rating, financial capacity and payment history, with respect to Client
("Information"), as Lender deems necessary to process, complete, service
and enforce the transactions hereby contemplated and any other existing
or potential transactions, or as required or otherwise permitted by law;
b) to respond to inquiries from, and exchange any Information with,
third parties concerning Client's credit rating, financial capacity and
payment history; c) to provide Information to persons to whom Lender
considers assigning, granting a participation or otherwise disposing of
rights or obligations under the transactions hereby contemplated; and d)
to provide to any person copies of this Agreement. This consent is in
addition to and does not replace any consent previously given.
4
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g SCHEDULE C
NO: 4155906001
GE -------------
THIS SCHEDULE C IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 28TH DAY OF
JUNE 2004.
--------------------------------------------------------------------------------
EQUIPMENT LOCATION
------------------
(Mailing Address)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, PO Box 10547 Stn. P
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Mining Property Leases:
The following Leases are issued by the Ministry of Natural Resources on behalf
of the Ministry of Northern Development and Mines: Lease nos. are 104108
(applies to parcel 2982, Thunder Bay leasehold), 104109 (applies to parcel
2983), 104111 (applies to parcel 2984) and 104110 (applies to parcel 2985).
GE CANADA EQUIPMENT FINANCING G.P.
-------------------------------------
LAC DES ILES MINES LTD.
--------------------------------------- -------------------------------------
--------------------------------------- -------------------------------------
(((CLIENT))) (((LENDER)))
By : By :
--------------------------------------- -------------------------------------
TITLE TITLE
--------------------------------------- -------------------------------------
SIGNATURE OF AUTHORIZED SIGNATURE OF AUTHORIZED
OFFICIERS OFFICIERS
TITLE TITLE
AMENDMENT NO. 1
TO SCHEDULE B OF
EQUIPMENT LOAN AND SECURITY AGREEMENT
GE Canada Equipment Financing G.P.("Lender") and Lac des Iles Mines Ltd.
("Client") have entered into a EQUIPMENT LOAN AND SECURITY AGREEMENT No.
4155906001 dated June 28th, 2004 (the "Agreement"). Lender and Client by mutual
consent agree to amend Schedule B ADDITIONAL PROVISIONS to the Agreement as
follows:
1) In PREPAYMENT Section 2.2 delete all references to "Borrower" and
substitute with "Client".
2) In the Default Section
Section 13(i) of the Agreement is deleted in its entirety and replaced with the
following: "(i) if, without the consent of Lender, such consent not to be
unreasonably withheld, Client consolidates, amalgamates or merges with another
entity or enters into any corporate reorganization or other transaction intended
to effect or otherwise permit a change in its existing corporate or capital
structure or Client passes any resolution concerning any matter referred to in
paragraph (e) or with respect to, or any proceedings, voluntary or involuntary,
are commenced under, any present or future law relating to amalgamation,
liquidation, winding-up or dissolution;"
All other terms and conditions of the Agreement remain unchanged.
LAC DES ILES MINES LTD. GE CANADA EQUIPMENT FINANCING G.P.
("Client") ("Lender")
--------------------------------- ------------------------------------
By: By:
--------------------------------- ------------------------------------
SIGNATURE OF AUTORIZED OFFICER SIGNATURE OF AUTORIZED OFFICER
--------------------------------- ------------------------------------
Date: Date:
[LOGO]
GE Canada EQUIPMENT LOAN AND
SECURITY AGREEMENT
--------------------- NO: 4159339001
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ #▇▇▇ --------------------
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, TEL: (▇▇▇) ▇▇▇-▇▇▇▇, FAX: (▇▇▇) ▇▇▇-▇▇▇▇
CLIENT: LAC DES ILES MINES LTD.
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,▇▇▇▇▇▇▇ CONTACT: ▇▇▇▇▇▇ ▇▇▇▇▇▇
M5H 3P5 Tel: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT LOCATION (if at address other than above) INSURANCE
MCLENNAN CANADA LTD.
MAIL: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ P (SEE SCHEDULE C)
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ TRUST TOWER, BCE PLACE
THUNDER BAY, ONTARIO, CANADA, P7B 6T9 ▇▇▇▇▇▇▇
▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
SEE SCHEDULE A WHICH IS AN INTEGRAL PART OF THIS AGREEMENT.
------------------------------------------------------------------------------------------------------------------------------------
FINANCED AMOUNT FINANCING RATE: INSTALMENTS
Amount Advanced: 10,000,000.00 CAD Variable Rate: Instalments: $ 626,277.84 CAD
Insurance Premium: BA RATE PLUS 2.50% P.A. Instalment date:
Financing fees: ------------
Frequency: QUARTERLY
Changes in BA Rate effective: No. of Instalments: 20
First Instalment date: -----------------
--------------
FINANCED AMOUNT: 10,000,000.00 =CAD MONTHLY Original Term: 60 MONTHS
------------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL PROVISIONS
SEE SCHEDULE B WHICH IS AN INTEGRAL PART OF THIS AGREEMENT.
------------------------------------------------------------------------------------------------------------------------------------
In consideration of the loan (the "Loan") by Lender (as defined below) to Client in the amount specified under the heading "Financed
Amount" above, the receipt of which Client hereby acknowledges, Client acknowledges itself indebted and promises to repay to Lender
the Financed Amount. Client also acknowledges that it has agreed to grant to Lender a security interest in the Equipment described
above to secure repayment of the Financed Amount on the terms and conditions set forth above, on pages 1, 2, 3 and 4 of document
15133E attached hereto, on all applicable schedules and other attachments hereto, all of which terms and conditions form a part of
this Equipment Loan and Security Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Equipment Loan and Security Agreement at Toronto in the province of
Ontario, this 24th day of November 2004.
LAC DES ILES MINES LTD. GE CANADA EQUIPMENT FINANCING G.P.
--------------------------------------------------------------- ----------------------------------------------------------------
--------------------------------------------------------------- ----------------------------------------------------------------
("CLIENT") ("LENDER")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------- ----------------------------------------------------------------
TITLE TITLE
V.P. Finance & C.F.O.
--------------------------------------------------------------- ----------------------------------------------------------------
SIGNATURE OF AUTHORIZED OFFICERS TITLE TITLE
14133E (12-95)
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
All equipment and installation costs related to the Grinding Improvement
Project including but not limited to the following (please refer to
invoices or purchase orders for greater detail):
One (1) New HP800 Metso ▇▇▇▇▇▇▇▇ Crusher, Mfg. Date: 06/2004, s/n
HP800189 c/w all accessories and attachemnts includes One (1) New Type
CGZ 800 HP Siemens Induction Motor, Mfg.
Date 06/2004, s/n E17059-01-1
Company Invoice No. PO Description
Acklands-Grainger Inc. 6045 0424547 53015 Tape -
carpenters x 1" metal blade x 25
Acklands-Grainger Inc. 6045 0424547 Measuring Tape
- Surveyors cloth x 100 m
Controltech Inc. 13466 51793 DCS upgrades - for GIP
Project Proposal
Controltech Inc. 13466 51793 DCS upgrades - for GIP
Project Proposal
Controltech Inc. 13466 51793 DCS upgrades - for GIP
Project Proposal
Controltech Inc. 13466 51793 DCS upgrades - for GIP
Project Proposal
Controltech Inc. 13466 51793 DCS upgrades - for GIP
Project Proposal
Controltech Inc. 13466 51793 DCS upgrades - for GIP
Project Proposal
Controltech Inc. 13466 51793 DCS upgrades - for GIP
Project Proposal
Controltech Inc. 676 55110 Workstation Upgrades - hard
drives
Controltech Inc. 676 55110 Workstation upgrades -
memory
Controltech Inc. 676 55110 XP software and licenses
VE21UPGNP
Controltech Inc. 676 55110 XP software and license
VE21UPG002
Controltech Inc. 676 55110 Data Historian workplace
application VE2
Controltech Inc. 676 55110 Data Historian Workplace
Application -
Controltech Inc. 676 55110 New Operator workststion
VE2501M14L01
Controltech Inc. 676 55110 Miniature media converter
1 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
Canadian Bearings Ltd. 3864404-00 55985 QD Bushing,
Type F, 2.75"
Canadian Bearings Ltd. 3864404-00 55985 Sheave, 5
Groove, 5V21.0
Canadian Bearings Ltd. 3864404-00 55985 V-Belt, 5V
1320
Canadian Bearings Ltd. 3864404-00 55985 RE: FREIGHT
& TAXI CHARGE
Canadian Bearings Ltd. 3864979-00 56401 QD Bushing,
Type F, 2.75"
Canadian Bearings Ltd. 3864979-00 56401 V-Belt, 5V
1320
Canadian Bearings Ltd. 3864979-00 56401 Sheave, 5
Groove, 5V21.0
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 8890 52913 freight
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 8890 52913 Suction
Hose
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 8890 52913 Discharge
Hose 500 FT 6" 1 week rental
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 8890 52913 Discharge
Hose 500 ft 6" 2 week rental
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 8890 52913 Pump - 6"
Diesel trash pump
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 9121 55114 Suction
Hose 20' with Screen - Rental
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 9121 55114 100'
discharge hose
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 9121 55114 FRT
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 9121 55114 Discharge
Hose 500' - Rental
▇▇▇▇▇▇ ▇. ▇▇▇▇ Supply Limited 9121 55114 6" diesel
trash pump - Rental
Gescan 136200-00 53679 BREAKER
Gescan 136200-00 53679 BREAKER
Gescan 138682-00 53962 MALE TWIST LOCK PLUG
Gescan 138682-00 53962 TWIST LOCK RECEPTACLE
Gescan 138682-00 53962 RECEPTACLE FACEPLATE
Gescan 138682-01 53962 TWIST LOCK RECEPTACLE
Gescan 138682-01 53962 MALE TWIST LOCK PLUG
Gescan 138682-01 53962 RECEPTACLE FACEPLATE
Gescan 141502-00 54610 Outside light fixtures
Gescan 146015-00 55466 End plates
Gescan 146015-00 55466 Weidmuller Terminal Marking
Tags
Gescan 146015-00 55466 SAK 4 600 volt / 20 amp /
2 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
wire size 22
Gescan 146015-00 55466 SAK 70 600 volt, 150 amp,
size 4 to 2/0
Gescan 146015-00 55466 SAK 4 600 volt / 20 amp /
wire size 22
Gescan 146015-00 55466 Weidmuller Terminal End
plates
Lakehead Belting_Rubber 55112 Conveyor belt - 48"
wide x 80 Ft long
Synergy Controls Corporation 11871 55313 ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ Model No.FTM31-D4BB1A
Air Canada 25464400/0 FRT FROM METSO
MINERALS LTD
▇▇▇▇▇▇ Transport Limited 39757 freight
A to Z Rentals, Sales, Service01-163019-05 53056 4"
SUCTION HOSE
A to Z Rentals, Sales, Service01-163019-05 53056 4"
DISCHARGE HOSE X 50"
A to Z Rentals, Sales, Service01-163019-05 53056 3"
SUCTION HOSE
A to Z Rentals, Sales, Service01-163019-05 53056 DAMAGE
WAIVER
A to Z Rentals, Sales, Service01-163019-05 53056 Rental (1
3" TRASH PUMP S/N872901408
A to Z Rentals, Sales, Service01-163019-05 53056 4" TRASH
▇▇▇▇▇▇ ▇▇▇▇ PUMP
▇▇▇▇ International Inc. 70138184 BRK
▇▇▇▇▇▇'▇ Copy Shop Inc. 40535 54936 GIP - cover the cost
of drawing reproduc
▇▇▇▇▇▇'▇ Copy Shop Inc. 40599 54936 Copies
▇▇▇▇▇▇'▇ Copy Shop Inc. 40956 55823 GIP - cover the cost
of drawing reproduc
Eecol Electric Ltd. TB 0194995 55383 MOUNTING KIT
Eecol Electric Ltd. TB 0194995 55383 350-120VAC
VIBRA TONE HORN
Eecol Electric Ltd. TB 0194995 55383 Audible/Visual
Warning Signal
Eecol Electric Ltd. TB 0195493 55923 Mounting kit
Eecol Electric Ltd. TB 0195493 55923 Horn
3 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
Electrical Safety Authority 90742855 52168 ESA
Services for GIP project - estimate
Electrical Safety Authority 90757624 52168 ESA
Services for GIP project - estimate
Electrical Safety Authority 90807565 52168 ESA
Services for GIP project - estimate
Electrical Safety Authority 90825545 52168 ESA
Services for GIP project - estimate
Eriez of Canada Limited 7965 52451 freight
Eriez of Canada Limited 7965 52451 Flag Drop System for
Metal Detector
Eriez of Canada Limited 7965 52451 Metal Detector -
Eriez Model 1230
Eriez of Canada Limited 8128 52450 FRT
Eriez of Canada Limited 8128 52450 Belt MAgnet -
Suspended electromagnet -
Fox, E. S. Constructors Ltd. B0133862 54847 GIP - To
cover the cost of the installat
Fox, E. S. Constructors Ltd. B0134506 54847 GIP - To
cover the cost of the installat
Fox, E. S. Constructors Ltd. B0135262 54847 GIP - To
cover the cost of the installat
Guillevin International Inc. 3062-412489 52866 To cover
the cost of ▇▇▇▇▇▇▇▇▇ MCC packa
Hawkeye Courier -Freight Inc. ▇▇▇▇▇-▇▇/▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -Freight Inc. OCT 3-9 RE:
EMERGENCY RUN ▇▇/▇/▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -Freight Inc. OCT 3-9 RE:
EMERGENCY RUN ▇▇/▇/▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -Freight Inc. OCT 11-15 RE:
EMERGENCY RUN 10/4/04
ITT Flygt 50913593 55314 FRT
ITT Flygt 50913593 55314 Flygt Model ENM-10
level float switch
▇▇▇▇▇ Construction Design Inc. 470874 MAY07-20/04
LABOUR, IT, 320, MTL
▇▇▇▇▇ Construction Design Inc. 470879
MAY21-JUN03/04 LABOUR, IT, 320, MATL
▇▇▇▇▇ Construction Design Inc. 470895 JUNE04-17/04
LABOUR, IT, 320, MTL
4 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
▇▇▇▇▇ Construction Design Inc. 470922
JUN18-JUL01/04 LABOUR, IT, 320, MTL
▇▇▇▇▇ Construction Design Inc. 470916/470931
JUN18-JUL01/04 LABOUR, IT, 320, MTL
▇▇▇▇▇ Construction Design Inc. 470936 ▇▇▇▇▇-▇▇/▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ Installations Inc. 6935 52649 Structural Steel
supply Package - Contra
Northwest Installations Inc. 6980 52649 Structural Steel
supply Package - Contra
Northwest Installations Inc. 7104 54600 GIP - chutes for
transfer tower and crus
Northwest Installations Inc. 7132 52649 Structural Steel
supply Package - Contra
Teleco Supply Co. Ltd. 40695 53503 PST
Teleco Supply Co. Ltd. 40695 53503 Cable Installation to
GIP Contractor Tra
Teleco Supply Co. Ltd. 42358 54937 Phone & Fax Line
Installation
Thunder Bay Harbour Improvement 00009553 54101
crane rental
Thunder Bay Harbour Improvement 9695 55205 GIP -
Crane rental for unloading equipme
Thunder Bay Harbour Improvement 9742 55205 GIP -
Crane rental for unloading equipme
Thunder Bay Harbour Improvement 9784 55205 GIP -
Crane rental for unloading equipme
Thunder Bay Harbour Improvement 9755 55205
CRANE SERVICE
▇▇▇▇▇▇▇ Engineering Inc. 0434240300-1 51497 GIP -
Proposal for Air C of A Admendment
Wanson Lumber Company Limited 6121708 54148
4"x4"x8' lumber
Wheelabrator Canada Co. 506007F 52724 Dust Collector
as per Wheelebrator Propo
Wheelabrator Canada Co. 508011H 52724 Dust Collector
as per Wheelebrator Propo
BG Controls 73114 55459 Drexelbrook Engineering Point
Level
5 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
Selway Corporation 6640 53094 Conveyor Supply
Package - as outlined in conveyor Supply
Selway Corporation 6644 53094
Package - as outlined in
Atlas Copco Comp. Can. 395125 52984 Atlas copco GA
45 compressor as per atla
Atlas Copco Comp. Can. 397621 54416 MISC PARTS
Atlas Copco Comp. Can. 397621 54416 GIP - Transfer
tower Compressor for Dust
Atlas Copco Comp. Can. 397956 54416 GIP - Transfer
tower Compressor for Dust
Konecranes Crane Pro PB10000100 52169 Overhead crane
- GIP 25/5 T as per Kone
Konecranes Crane Pro PB10000206 52169 Overhead crane
- GIP 25/5 T as per Kone
Konecranes Crane Pro PB10000211 52169 Overhead crane
- GIP 25/5 T as per Kone
Konecranes Crane Pro 53694 KCI radio system for
CXT 5 tonne For h
Konecranes Crane Pro 53694 KCI radio system for CXT
2 Tonne hoist m
Konecranes Crane Pro 53694 1 each Kone CXT 2 tonne
hoist - EQUIPMEN
Konecranes Crane Pro 42300007448 53694 1 each Kone
model:CXT5 tonne Equipment #
Sigfusson Northern - Manitoba 2039 RE
EQUIPMENT USAGE
Sigfusson Northern - Manitoba 2045 5659 GIP -
purch reclaim conv from Sigfussion
Sigfusson Northern - Manitoba 2047 RE: EXTRA
WORK OCT 27/04 CAT 980G ▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇ Blasting Ltd. 009507 54142 GIP - Drill rock
to facilitate the break
Courtesy Freight Systems 1146813 FRT
Hertz Equipment Rental 21028956-001 53148 Tamper model -
▇▇▇▇▇▇ DPU6005 - diesel w
Hertz Equipment Rental 21028876-001 52904 Pump - 4"
diesel operated trash c/w 90
Hertz Equipment Rental 21028876-002 52904 Tamper model -
▇▇▇▇▇▇ DPU6005 - diesel w
6 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
Manitoulin Transport 8115588 FRT
Manitoulin Transport 8287438 FREIGHT
Manitoulin Transport 8870675 FREIGHT
Hydroflo Controls Ltd. 42552 55340 ▇▇▇▇▇▇▇▇ Pressure
Gauge
Hydroflo Controls Ltd. 42552 55340 ▇▇▇▇▇▇▇▇ Pressure
Switch
International Castings C240054 55212 Belts, Coupling and
Bushing
International Castings C240054 55212 60 hp 1800rpm,
600V, Electric Motor
International Castings C240054 55212 3 1/2" ▇▇▇▇▇▇▇▇
Virtical Sump Pumps
International Castings C240065 55212 Belts, Coupling and
Bushing
International Castings C240065 55212 60 hp 1800rpm,
600V, Electric Motor
International Castings C240065 55212 3 1/2" ▇▇▇▇▇▇▇▇
Virtical Sump Pumps
CK Logistics Inc. 0023797 FRT
CK Logistics Inc. 0023730 FRT
CK Logistics Inc. 0023743 FRT
CK Logistics Inc. 0024388 RE: FREIGHT & FUEL
SURCHARGE
Metso Minerals (Canada) Ltd. PF060304-SM417 50266
Purchase HP800 crusherMetso quotation 2
Metso Minerals (Canada) Ltd. PF060304-SM417A 50266
Purchase HP800 crusher Metso quotation 2
Metso Minerals (Canada) Ltd. PF060304-SM430 52013
Inclined Vibrating Screen RE Metso Quota
Metso Minerals (Canada) Ltd. PF060804-SM417 50266
Purchase HP800 crusherMetso quotation 2
Metso Minerals (Canada) Ltd. PF080904-SM430 52013
Inclined Vibrating Screen RE Metso Quota
HATCH 90060660 48976 SAG precrush circuit basic
design
HATCH 90056665 48976 SAG precrush circuit basic
design
HATCH 90054711 48976 SAG precrush circuit basic
design
HATCH 90066706B 48976 SAG precrush circuit basic
design
7 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
HATCH 90066706A 52878 GIP-SAG precrush final design
and constr
HATCH 90068259 52878 GIP-SAG precrush final design
and constr
HATCH 90070903 52878 GIP-SAG precrush final design
and constr
HATCH 90074618 52878 GIP-SAG precrush final design
and constr
HATCH 90074618 52878 GIP-SAG precrush final design
and constr
HATCH 90076508 52878 GIP-SAG precrush final design
and constr
HATCH 90062709 52878 GIP-SAG precrush final design
and constr
HATCH 90079129 52878 GIP-SAG precrush final design
and constr
DST Consulting Engineers 35402 51518 Soils
Investigation for GIP crusher foun
DST Consulting Engineers 35438 51518 Additional
Geotechnical Services
DST Consulting Engineers 35468 51518 Additional
geotechnical services
DST Consulting Engineers 35570 54257 GIP - Work
completed on GIP foundation f
DST Consulting Engineers 35610 54027 To cover the
cost of on site inspection
DST Consulting Engineers 35683 54027 To cover the
cost of on site inspection
DST Consulting Engineers 35716 54027 To cover the
cost of on site inspection
T. W. MacKay_Sons Ltd. 984477 52555 Single idler belt
scale as per ▇▇ ▇▇▇▇▇
Westburne Electric Supply 4854458 52598 9 BURNDY
HYLUGS
Westburne Electric Supply 4860724 52598 Low voltage
switch gear as per Rockwell
▇▇▇ ▇▇▇▇▇ Corporation 04-257 53337 Concrete Package as
outlined in Contract
▇▇▇ ▇▇▇▇▇ Corporation 04-294 53337 Change Order 1 -
Cost associated with th
▇▇▇ ▇▇▇▇▇ Corporation 04-294 53337 Change Order 1 -
Cost associated with pl
▇▇▇ ▇▇▇▇▇ Corporation 04-294 53337 Change Order 2 -
8 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
Cost associated with ov
▇▇▇ ▇▇▇▇▇ Corporation 04-294 53337 Change Order 3 - to
incorporate the foll
▇▇▇ ▇▇▇▇▇ Corporation 04-294 53337 Concrete Package as
outlined in Contract
▇▇▇ ▇▇▇▇▇ Corporation 05-007 53337 Concrete Package as
outlined in Contract
▇▇▇ ▇▇▇▇▇ Corporation 05-007 53337 Change Order 3 - to
incorporate the foll
▇▇▇ ▇▇▇▇▇ Corporation 05-007 53337 Change Order 4 -
Extra costs for counter
▇▇▇ ▇▇▇▇▇ Corporation 05-034 53337 Change Order 4 -
Extra costs for counter
▇▇▇ ▇▇▇▇▇ Corporation 05-034 53337 Change Order 3 - to
incorporate the foll
▇▇▇ ▇▇▇▇▇ Corporation 05-034 53337 Change Order 2 -
Cost associated with ov
▇▇▇ ▇▇▇▇▇ Corporation 05-034 53337 Concrete Package as
outlined in Contract
Dust Control Technologies, Inc. 2262 54415 FRT
Dust Control Technologies, Inc. 2262 54415 GIP -
transfer tower dust supression as
Electrical ▇▇▇▇▇ Authority 52168 ESA Services for
GIP project - estimate
BG Controls 55459 Drexelbrook Engineering Point
Level
Hertz Equipment Rental 57050 GIP-HermanNelson
rentals for crusher and
Hertz Equipment Rental 57050 Ducting - 12' x 12"
Fox, E.S. Constructors Ltd. 54847 GIP - To cover the
cost of the installat
Canadian Bearings Ltd. 57353 V-Belt, 5V 1400
Canadian Bearings Ltd. 56482 GIP - Refurbish stacker
conveyor
Canadian Bearings Ltd. 56482 GIP - cylinder
refurbishment
Canadian Bearings Ltd. 57359 80-1r roller chain
Canadian Bearings Ltd. 57359 Connection link
Canadian Bearings Ltd. 57359 Offset link
Metso Minerals (Canada) Ltd. 57424 GIP - air
breather
DST Consulting Engineers 54027 To cover the cost of
on site inspection
Kal Tire - T GIP - tires for stacker conveyor
Bay 56481
Thunder Bay Harbor Improvement 55205 ▇▇▇ ▇▇▇▇▇
9 / 10
[LOGO]
GE Canada
SCHEDULE A
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE A IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT NO.4159339001 EXECUTED AT TORONTO IN THE PROVINCE
OF ONTARIO, THIS 24TH DAY OF NOVEMBER 2004.
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
---------
UNITS MODEL YEAR DESCRIPTION SERIAL Nos.
Services
▇▇▇▇▇▇▇▇'▇ Machinery & Supply 54140 GIP - Splitter
car and hydraulics packag
Northwest Installations Inc. 52649 Steel fabrication
Northwest Installations Inc. 52649 Steel fabrication
Northwest Installations Inc. 52649 Fabrication tooling
Selway Corporation 53094 Coneyer pulleys and gear
box
Fox, E.S. Constructors Ltd. 54847 Building
Infrastrcuture
Fox, E.S. Constructors Ltd. 54847 Electrical and
commissioning estimate
Wardrope Engineering Inc. 00051497 C of A for GIP -
Wardrope Eng
Metso Minerals (Canada) Ltd. 00052013 Metso
screen model SV-XH
Electrical Safety Authority 00052168 GIP - ESA
inspection services
Northwest Installations Inc. 00052649 GIP - Structural
steel supply
Hatch 000528GIP cost - Hatch Eng & Tech
Support
▇▇▇ ▇▇▇▇▇ Corporation 00053337 GIP - Concrete
Package
DST Consulting Engineers 00054027 GIP foundations
- dst inspection services
Fox, E.S. Constructors Ltd. 00054847 GIP -
Mechanical/electrical contract
Controltech Inc. 00055110 GIP - Electrl/Inst Delta V
up grades
Superior Propane 00056587 GIP - Ppropane tanks
Metso Minerals (Canada) Ltd. 00057188 GIP Mech /
Elect Spare Parts
Metso Minerals (Canada) Ltd. 00057189 GIP Mech /
Elect Spare Parts
Metso Minerals (Canada) Ltd. 00057242 GIP -
Mech/Const Cont/Equip LDI Purch
MGM Electric Ltd. 00057363 GIP - On site construction
and work
▇▇▇▇▇▇ Fire Protection 00057491 ▇▇▇ - ▇▇▇▇▇▇
sprinkler system
LAC DES ILES MINES LTD. GE CANADA EQUIPMENT FINANCING G.P.
--------------------------------------------------------------- ----------------------------------------------------------------
--------------------------------------------------------------- ----------------------------------------------------------------
("CLIENT") ("LENDER")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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TITLE TITLE
V.P. Finance & C.F.O.
--------------------------------------------------------------- ----------------------------------------------------------------
SIGNATURE OF AUTHORIZED OFFICERS TITLE TITLE
14133E (12-95)
10 / 10
[LOGO]
GE Canada
SCHEDULE B
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE B IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO. 4159339001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 24TH DAY OF
NOVEMBER 2004.
--------------------------------------------------------------------------------
ADDITIONAL PROVISIONS
---------------------
PREPAYMENT
Section 2.2 of the Agreement is deleted and replaced by the following:
2.2 Prepayment: Commencing 12 months from the date hereof, upon 10 business days
prior notice to Lender, Client may prepay on the anniversary date of the
agreement each year part of the then outstanding balance of the Financed Amount,
provided that the prepayment does not exceed 10% of the then outstanding balance
of the Financed Amount and that Client also pays all accrued interest, any
Overdue Payment and all other amounts owing under this Agreement at the time of
prepayment. Such prepayment shall be subject to a prepayment fee of $2,000.00
CDN per occurrence and Break Costs as determined below. Upon exercising such
option the Installment amount will amended to provide for equal payments over
the Original Term.
In addition, Client may at any time, upon 10-day prior notice to Lender, prepay
all, but not less than all, of the then unpaid outstanding balance of the
Financed Amount on the condition that such prepay amount shall not be derived
from an alternative debt facility, in addition to the payment to Lender of any
Overdue Payments, all other amounts owing under this Agreement and the "Break
Costs" determined as follows:
(a) if the Financing Rate is a variable rate, $2,000.00CDN, or
(b) On the Prepayment Date, if the Interest Rate is a Fixed Interest Rate, the
Client shall pay to the Lender the greater of (a) $0 or (b) the amount obtained
by (i) discounting the remaining payments on the Loan and the balloon payment,
if any, at the Current Yield less (ii) the amount obtained by discounting the
remaining payments in respect of the Loan and the balloon payment, if any, at
the Original Yield.
The Client acknowledges that the prepayment premium represents a fair and
reasonable compensation for the loss that the Lender may sustain from any
prepayment or acceleration of the Loan Amount.
Current Yield means the then current Government of Canada Bond (GOC) applicable
for a Duration equal to the then remaining Duration of the transaction, at the
time the prepayment option is exercised. Original Yield means the GOC Rate used
at the time the Interest Rate was fixed to determine the fixed loan payments.
GOC Rate means the yield on the applicable Government of Canada Bond as in
effect on the Friday preceding the disbursement date and published in the next
Monday edition of the Globe and Mail.
Duration means the average maturity of the loan payments (including balloon
payment, if any) which is measured by calculating the sensitivity of the
outstanding principal of the Loan to a one (1) basis point change in the
Interest Rate of the Loan
Client acknowledges that the Break Costs represent a fair and reasonable
pre-estimate of the compensation for the loss that the Lender may sustain from
any prepayment or acceleration of the Financed Amount.
.....................
IRREGULAR PAYMENTS
Notwithstanding the amount of each Installment stated on the face hereof, the
Installments are comprised of a fixed principal component of $500,000.00 plus an
interest component according to the BA Rate as defined herein.
.....................
1 / 3
[LOGO]
GE Canada
SCHEDULE B
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE B IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO. 4159339001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 24TH DAY OF
NOVEMBER 2004.
--------------------------------------------------------------------------------
ADDITIONAL PROVISIONS
---------------------
PERMITTED ENCUMBRANCES
Section 5.2 is amended to provide that marketable title is subject to Permitted
Encumbrances and as defined in the General Security Agreement Dated June 28th
2004, between Client and Lender.
......................
EQUIPMENT MAINTENANCE
Subsection 7.1(c) is deleted in its entirety and replaced with the following:
" the Client shall maintain the Equipment in accordance with standards
consistent with and customary to industry practice and in accordance with
manufacturer's service bulletins and any mandatory government requirements."
......................
INSURANCE
The word "reasonably" is inserted between "may" and "require" in the first
sentence of subsection 9.1(b).
......................
LIENS
The words ", except for Permitted Encumbrances." shall be added to the end of
section 11.
......................
DEFAULT
Section 13(i) of the Agreement is deleted in its entirety and replaced with the
following:
"(i) if, without the consent of Lender, such consent not to be unreasonably
withheld, Client consolidates, amalgamates or merges with another entity or
enters into any corporate reorganization or other transaction intended to effect
or otherwise permit a change in its existing corporate or capital structure or
Client passes any resolution concerning any matter referred to in paragraph (e)
or with respect to, or any proceedings, voluntary or involuntary, are commenced
under, any present or future law relating to amalgamation, liquidation,
winding-up or dissolution;"
......................
ENTIRE AGREEMENT
The words "and the General Security Agreement" are added to the end of section
29.1.
......................
Add the following new Section 42 at the end:
42. Acknowledgment
Lender acknowledges that Client has or will deposit up to $2,000,000
with Bank of Montreal as collateral for foreign exchange
2 / 3
[LOGO]
GE Canada
SCHEDULE B
--------------------- NO: 4159339001
--------------------
THIS SCHEDULE B IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO. 4159339001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 24TH DAY OF
NOVEMBER 2004.
--------------------------------------------------------------------------------
ADDITIONAL PROVISIONS
---------------------
obligations of Client to Bank of Montreal.
........................
OPTION TO FIX RATE
If the Financing Rate is a Floating Rate, Client has one option, exercisable at
any time during the term by giving a 10-day prior notice to Lender, to fix the
Financing Rate for the remainder of the term, upon payment to Lender of a fee of
$1,500.00 CDN. The Financing Rate shall be determined by the Lender in
accordance with the characteristics of the transaction evidenced by this
Agreement.
........................
TRANSACTION FEE
Client agrees to pay transaction fee of $50,000.00 CDN upon signature hereof.
........................
PRICING INDEX "BA RATE"
The words "Prime Rate" whenever used herein are replaced by the words "BA Rate",
which means, on any day, the annual rate of interest equal to and identified as
the average discount rate (rounded upwards, if necessary, to the nearest 0.01%)
of one-month Canadian dollar bankers' acceptances as displayed in the "Bank of
Canada Weekly Financial Statistics" as published every Friday for the last
Wednesday (or, if such Wednesday is not a Business Day, the preceding Business
Day) of the preceding calendar month; provided, however, that if such rate does
not appear in the Bank of Canada Weekly Financial Statistics as contemplated,
then the "BA Rate" shall be, on any day, the annual rate of interest equal to
and identified as the average discount rate (rounded upwards, if necessary, to
the nearest 0.01%) of one-month Canadian dollar bankers' acceptances as
displayed on the "Reuters Screen CDOR Page" as at approximately 10:00 a.m.
(Toronto time) on the last Wednesday (or, if such Wednesday is not a Business
Day, the preceding Business Day) of the preceding calendar month
........................
SECOND POSITION ON INVENTORIES AND RECEIVABLES
Upon request, Lender shall subordinate its interests in Inventories and
Receivables of Client as defined in the General Security Agreement dated June
28th, 2004, provided that such Inventories and Receivables are not proceeds of
the Equipment.
LAC DES ILES MINES LTD. GE CANADA EQUIPMENT FINANCING G.P.
--------------------------------------------------------------- ----------------------------------------------------------------
--------------------------------------------------------------- ----------------------------------------------------------------
("CLIENT") ("LENDER")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------- ----------------------------------------------------------------
TITLE TITLE
V.P. Finance & C.F.O.
--------------------------------------------------------------- ----------------------------------------------------------------
SIGNATURE OF AUTHORIZED OFFICERS TITLE SIGNATURE OF AUTHORIZED OFFICERS TITLE
14133E (12-95)
3 / 3
SCHEDULE C
NO: 4155906001
GE -------------
THIS SCHEDULE C IS AN INTEGRAL PART OF THE EQUIPMENT LOAN AND SECURITY AGREEMENT
NO.4155906001 EXECUTED AT TORONTO IN THE PROVINCE OF ONTARIO, THIS 28TH DAY OF
JUNE 2004.
EQUIPMENT LOCATION
(Mailing Address)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, PO Box 10547 Stn. P
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Mining Property Leases:
The following Leases are issued by the Ministry of Natural Resources on behalf
of the Ministry of Northern Development and Mines: Lease nos. are 104108
(applies to parcel 2982, Thunder Bay leasehold), 104109 (applies to parcel
2983), 104111 (applies to parcel 2984) and 104110 (applies to parcel 2985).
GE CANADA EQUIPMENT FINANCING G.P.
-------------------------------------
LAC DES ILES MINES LTD.
--------------------------------------- -------------------------------------
--------------------------------------- -------------------------------------
(((CLIENT))) (((LENDER)))
By : By :
--------------------------------------- -------------------------------------
TITLE TITLE
--------------------------------------- -------------------------------------
SIGNATURE OF AUTHORIZED SIGNATURE OF AUTHORIZED
OFFICIERS OFFICIERS
TITLE TITLE
GE [LOGO]
GE CANADA
EQUIPMENT FINANCING EQUIPMENT LOAN AND SECURITY AGREEMENT
1. INTERPRETATION
1.1 For the purpose of this Agreement:
(a) "Accrued Liability" at any time means the amount equal to the
sum of the Financed Amount, any Prepayment Bonus and all other
amounts then payable hereunder, including without limitation,
any Overdue Payment and accrued interest.
(b) "Affiliate" means in respect of a person, a person or persons
that, directly or indirectly through one or more intermediaries,
control, are controlled by, or are under common control with,
such person, and for the purposes of this definition, "control"
means the power to direct or cause the direction of the
management and policies of a person whether through the
ownership of voting securities or otherwise, and "person" means
an individual, corporation, partnership, joint venture,
association, trust or unincorporated organization or any
trustee, executor, administrator or other legal representative.
(c) "Agreement" means this Equipment Loan and Security Agreement and
any applicable schedules hereto, unless the context otherwise
requires, and "hereof", "herein", "hereby", "hereunder" and
similar expressions refer to this Agreement.
(d) "business day" means a day when the office of Lender at the
address stated on the face hereof is open for business.
(e) "Claims" has the meaning assigned in Section 16.
(f) "control" has the meaning attributed to it in the CANADA
BUSINESS CORPORATIONS ACT.
(g) "Costs of Disposition" means all costs, disbursements, fees,
commissions and other expenses (including legal fees and
expenses) which Lender may incur, pay or be liable for in
connection with recovering possession of, dismantling, removing,
transporting, repairing, processing, reconditioning, storing,
selling, leasing or otherwise disposing of Equipment.
(h) "Client" means the client of Lender stated on the face hereof.
(i) "Default" means any of those events or circumstances specified
in Section 13.
(j) "Equipment" means the items of personal property described on
the face hereof and, when required by the context, individual
items thereof.
(k) "Equities" means existing or future rights of counterclaim,
defence, set-off, compensation, abatement or offset, legal or
equitable.
(l) "Financed Amount" means the amount stated as such on the face
hereof owing by Client to Lender or the unpaid outstanding
balance thereof, as the context requires.
(m) "Financing Rate" means the rate per annum stated as such on the
face hereof.
(n) "Instalments" means the periodic repayment instalments of the
Financed Amount, together with interest calculated at the
Financing Rate as provided on the face hereof, such instalments
stated on the face hereof.
(o) "Lender" means the Lender stated on the face hereof.
(p) "Lien" means any lien, privilege, mortgage, pledge, hypothec,
charge, security interest, attachment, assignment, seizure,
sequestration, distress, levy or other encumbrance of any nature
or kind whatsoever.
(q) "Loss of Equipment" means:
(i) a total or constructive total loss of Equipment, or
damage thereto, or theft thereof which, in the
reasonable opinion of Lender, renders it impossible or
impractical to use the Equipment for its intended
purpose; or
(ii) expropriation or confiscation of Equipment by any
authority absolutely or for more than 180 days.
(r) "Obligation" means any obligation by Client to pay any amount
owing hereunder, including the Financed Amount, Overdue Payments
and all other amounts owing hereunder, or to perform any other
obligation of Client hereunder or which is secured hereunder.
(s) "Overdue Payment" means any amount owing by Client hereunder and
any sum disbursed by Lender pursuant to Section 15 which is not
paid when due hereunder, or any portion thereof.
(t) "person" means any natural person, corporation, firm,
partnership, trust, sole proprietorship or governmental agency,
authority or other entity, however constituted or designated.
(u) "Pledge" means to mortgage, charge, pledge, hypothecate, assign
or grant a security interest and the security resulting
therefrom and, as a noun, has the corresponding meaning.
(v) "Prepayment Bonus" means a prepayment bonus determined in
accordance with Section 2.2.
(w) "Prime Rate" means the yearly rate of interest which National
Bank of Canada announces from time to time in Canada as its
prime lending rate which is a reference rate for demand loans in
Canadian dollars to corporate borrowers.
(x) "Supplier" means any manufacturer, supplier, vendor of or dealer
in Equipment or any other person from whom Client has acquired
any of the Equipment.
(y) "Taxes" means any and all taxes, imposts, levies, fees, duties
and charges imposed by any taxing authority on Lender, Client,
the Equipment, its purchase, sale, ownership, security interest
thereon, delivery, possession, operation or use including,
without limitation, sales, excise, use, health services,
property, goods and services, business transfer and value added
taxes (including any penalties or interest based on late or
non-payment), but excluding taxes imposed on or measured by
Lender's overall net income.
(z) "Warranties" means any and all warranties, guarantees,
representations, service contracts, contracts to stock spare
parts and similar agreements, oral or written, express, implied
or statutory, relating to Equipment.
1.2 In this Agreement, unless the context otherwise requires, the singular
includes the plural and vice-versa and words importing gender include
each gender.
1.3 All references herein to statutes include the statute as it may be
amended, restated or replaced with legislation of comparable effect.
1.4 Acts to be performed hereunder on non-business days shall be performed
on the following business day.
2. INSTALMENTS
2.1 Client hereby acknowledges that it has borrowed from Lender and is
thereby, or has otherwise become, indebted to and agrees to repay to
Lender, at the address of Lender stated on the face hereof or such other
place notified by Lender to Client, the Financed Amount, together with
interest thereon, by paying the Instalments stated on the face hereof.
Unless otherwise stated, Instalments are due on the dates stated on the
face hereof in each month, or other period (or the last day of the
month, if there is no corresponding date), in arrears, throughout the
term hereof. On the final Instalment date, Client shall pay Lender the
outstanding balance of the Financed Amount, all accrued and unpaid
interest thereon and all other amounts payable hereunder.
2.2 Client may at any time prepay the Financed Amount in whole or in part
upon payment to Lender of a Prepayment Bonus determined as follows:
(a) if the Financing Rate is a variable rate based on Prime Rate,
the bonus shall be three months' interest on the amount prepaid
calculated at the Financing Rate in effect at the time of
prepayment, or
(b) if the Financing Rate is a fixed rate, the bonus shall be either
(i) three months' interest on the amount prepaid calculated at
the Financing Rate (the "Minimum Bonus"), if the Financing Rate
does not exceed the Prime Rate in effect at the time of
prepayment ("Current Prime"), or (ii) the greater of (A) the
Minimum Bonus or (B) the amount determined as the product of (x)
the Financing Rate less Current Prime times (y) the amount
prepaid times (z) the fraction of the number of days to elapse
until the final Instalment date, disregarding prepayments,
divided by 365, if the Financing Rate exceeds Current Prime.
Any portion of the Financed Amount prepaid shall be applied to the
remaining Instalments in inverse order of maturity. No part of the
Prepayment Bonus shall be applied in reduction of said remaining
Instalments. If a Default or a Loss of Equipment occurs, the Prepayment
Bonus shall also be payable by Client and shall be calculated by
reference to the outstanding balance of the Financed Amount at the time
of such Default or Loss of Equipment, as applicable.
3. INTEREST
3.1 The Financed Amount shall bear interest from the date hereof until paid
in full to Lender (as well before as after maturity, demand, Default or
judgment) at the Financing Rate.
3.2 In addition to interest payable under Section 3.1, each Overdue Payment
shall bear interest from the date due until paid in full to Lender (as
well before as after demand, Default or judgment) at the rate of 12% per
annum, calculated as specified in Section 3.3.
3.3 Interest payable hereunder shall accrue from day to day, be payable in
arrears on each Instalment date and be computed upon the daily
outstanding balance of the Financed Amount or Overdue Payment, as
applicable, and shall be calculated on the basis of the number of days
elapsed in a 365-day year. The yearly rate of interest to which each
rate of interest expressed
--------------------------------------------------------------------------------
1
herein is equivalent is the product of (a) such rate times (b) the
fraction of the number of days in the year divided by 365.
3.4 If the Financing Rate is a variable rate based on Prime Rate, a change
in Prime Rate automatically changes the rate of interest payable
hereunder to the same extent and in the same manner effective with the
frequency stated on the face hereof. Lender shall not be obliged to
notify Client of any such change, any right to notice being hereby
irrevocably waived by Client.
4. TITLE, OWNERSHIP
Title to, ownership of, and all property in Equipment shall remain with
Client, but subject always to the security interests and other
provisions hereof, and at Client's sole risk, until full payment in cash
of all amounts repayable hereunder; prior to such payment, Client's
rights therein are to quiet enjoyment and use on the terms and
conditions of this Agreement so long as a Default has not occurred.
5. SECURITY INTEREST AND WARRANTIES AS TO EQUIPMENT
5.1 In consideration of the Loan, Client hereby mortgages, hypothecates,
charges by way of a first fixed charge, and grants to Lender a
continuing security interest (herein collectively called a "security
interest") in Equipment and Pledges in favour of Lender all insurance
claims and all proceeds (including proceeds of proceeds) therefrom with
respect to any loss or damage to Equipment or any lease or rental of
Equipment, all to secure repayment of the Financed Amount and other
Obligations of Client.
5.2 Client represents and warrants to Lender that the Client has good and
marketable title to Equipment, free and clear of all Liens, except for
the security interests of Lender hereunder. Client agrees to comply with
all Warranties accruing to the Client pertaining to Equipment; however,
any failure by any vendor to Client of Equipment to comply with any
Warranty shall not affect Client's Obligations to Lender hereunder.
6. PERSONAL PROPERTY AND WAIVERS
6.1 Equipment shall at all times be and remain moveable personal property.
Notwithstanding any purpose for which Equipment may be used or that it
may become affixed or attached to land or any structure thereon,
Equipment shall remain subject to all rights of Lender hereunder as if
it were not so affixed or attached.
6.2 Client agrees to obtain a waiver, if required by and in a form
satisfactory to Lender, from any landlord, mortgagee, hypothecary
creditor or other encumbrancer of the premises where Equipment is
situated (and prior to its becoming affixed if it is to be affixed).
7. MAINTENANCE, USE, OPERATION, ALTERATIONS, UPGRADES, ETC.
7.1 Client shall at its own expense:
(a) maintain Equipment in good operating condition, repair and
appearance, ordinary wear and tear only excepted;
(b) comply with all recommendations or requirements of Supplier
regarding Equipment so as to preserve all Warranties; and
(c) at Lender's request, enter into a maintenance agreement for
Equipment for the full term of this Agreement with Supplier or a
competent service and maintenance agent approved by Lender.
7.2 Client shall not, without Lender's consent, make any alterations,
additions, accessions or attachments to Equipment. Such consent will
only be granted if such changes:
(a) do not materially decrease the value of Equipment or limit,
interfere with or frustrate its intended use;
(b) do not prejudice or adversely affect any Warranties; and
(c) are free from, and do not subject Equipment to, any Lien.
7.3 All replacement parts and components, alterations, additions, accessions
and attachments to Equipment shall automatically become subject to the
security interests created hereby as soon as they are acquired by or on
behalf of Client.
7.4 Client shall affix and keep affixed to Equipment any labels supplied by
Lender identifying its security interests in Equipment.
8. INSPECTION
Any representative of Lender shall have the right to inspect Equipment
at all reasonable times upon notice to Client.
9. INSURANCE
9.1 Client shall at its own expense place and maintain with insurers
acceptable to Lender:
(a) comprehensive all risks insurance on Equipment for the greater
of the Financed Amount or the full replacement value of the
Equipment. Such insurance shall include: (i) a loss payable
clause in favour of Lender and (ii) a waiver of subrogation
clause in favour of Lender; and
(b) general public liability and property damage insurance with
limits of liability at least equal to $1,000,000 or such greater
amount as Lender may require. Such insurance shall extend to all
liabilities of Client under this Agreement arising out of its
use or possession of Equipment and to any potential vicarious
liability of Lender as holder of security interests in Equipment
created hereby.
9.2 All such policies of insurance shall be in place at the effective date
of this Agreement and shall contain endorsements providing that: (a) 30
days' written notice shall be given to Lender before the policy lapses
or is materially altered or cancelled; (b) the insurance shall be
primary and not contributory; (c) Lender's interests therein shall not
be invalidated or otherwise adversely affected by any act or omission,
deliberate, negligent or otherwise, of Client or its agents, servants or
employees (the so-called "standard mortgage clause"); (d) Lender shall
not be responsible for payment of any premiums; and (e) Lender may elect
to have all proceeds of loss payable only to itself.
9.3 Client shall supply Lender with certified copies of all insurance
policies, endorsements or other evidence of the required coverage
satisfactory to Lender within 30 days of the effective date of this
Agreement and on request.
9.4 In the event of damage to any item of Equipment amounting to Loss of
Equipment, Lender shall be entitled to receive immediate payment of the
amount equal to the Accrued Liability with respect to such item of
Equipment. Lender may retain any monies received from the insurance
proceeds in an amount equal thereto, Client remaining liable for any
deficiency.
10. TAXES, ETC.
Client shall have the sole responsibility for and shall duly and
punctually pay all Taxes and all licence and similar fees payable at any
time upon, or in respect of, Equipment, this Agreement and any payments
or transactions contemplated hereunder.
11. LIENS
Client shall keep Equipment free of all Liens.
12. LAWS AND REGULATIONS
Client is and shall continue to be in compliance with all laws and
regulations relating to use, operation or possession of Equipment or the
security interests therein in favour of Lender, and those relating to
the prevention of money laundering and terrorism.
13. DEFAULT
It shall be a Default under this Agreement if:
(a) Client fails to pay any Instalment within 10 days after its due
date;
(b) any representation or warranty of Client made herein or in any
instrument or document delivered to Lender in connection
herewith is false or materially incorrect or misleading;
(c) any insurance coverage required to be obtained and maintained by
Client under this Agreement shall lapse, expire or be cancelled;
(d) Client defaults in any other Obligation, or in any obligation
under any other agreement with Lender or any Affiliate of Lender
and such default continues for 10 days after notice thereof by
Lender or such Affiliate, as applicable, to Client;
(e) any act of bankruptcy takes place respecting Client, or any
proceeding, petition or notice, voluntary or involuntary, is
commenced, made, given or filed, as the case may be, by the
Client or any other person, under any present or future statute
or law relating to bankruptcy, insolvency or relief from or
compromise or arrangement with creditors of Client;
(f) Client ceases or threatens to cease to carry on business or
makes or proposes to make any sale of the whole or any
substantial portion of its assets in bulk, or otherwise out of
the normal course of business;
(g) any execution, sequestration, expropriation or similar process
is brought or threatened, by way of notice or otherwise,
against, or a distress or analogous process is levied upon the
whole or any part of the property of Client or Equipment;
(h) any trustee, receiver, interim receiver, administrator, manager
or similar official is appointed with respect to all or any part
of the property, assets or undertaking of Client, whether
pursuant to any private instrument or agreement or by order of
any court;
(i) if ownership of or control and direction over the assets or
undertaking of Client or the majority of its voting shares
changes, by amalgamation, merger, sale, transfer of shares or
otherwise, except pursuant to death of the shareholder, or
Client passes any resolution concerning any matter referred to
in paragraph (e) or with respect to, or any proceedings,
voluntary or involuntary, are commenced under, any present or
future law relating to amalgamation, liquidation, winding-up or
dissolution;
(j) an event occurs which, in the opinion of Lender, could
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), business, operations,
assets, liabilities or prospects of Client, Client's ability to
perform any Obligation, or any obligation under any other
agreement with Lender or any Affiliate of Lender, or on the
rights and remedies of Lender thereunder, and continues for 10
days after notice thereof by Lender or such Affiliate, as
applicable, to Client; or
(k) any event or circumstance described in any of paragraphs (c) and
(e) through (j) inclusive occurs with respect to any guarantor
or surety of Client respecting this Agreement or any person who
controls Client or any Affiliate of Client. A Default under this
Agreement shall be deemed a default under all other present and
future agreements entered into between Client and Lender or any
Affiliate of Lender.
14. LENDER'S REMEDIES ON DEFAULT
Upon Default, Lender shall be entitled to do one or more of the
following:
(a) declare this Agreement to be in default (with or without
terminating this Agreement) whereupon all Obligations shall be
immediately due, payable and enforceable without any notice or
demand whatsoever;
(b) terminate this Agreement;
2
--------------------------------------------------------------------------------
(c) declare any or all of the Obligations to be immediately due and
payable, or be subject to immediate performance, as the case may
be, without presentment, protest or notice of dishonor, all of
which are expressly waived;
(d) take possession of Equipment, without demand, notice or legal
proceeding and enter on any premises of Client or any other
person for such purpose;
(e) sell, lease or otherwise dispose of Equipment by public or
private transaction for such consideration payable immediately
and/or deferred and on such terms and conditions as Lender in
its discretion determines;
(f) whether or not this Agreement may have been or be deemed to have
been terminated, demand, ▇▇▇ for and recover the amount equal to
the Accrued Liability, less, if applicable, the net proceeds to
Lender derived from the sale, lease or other disposition of the
Equipment, after deducting all Costs of Disposition; and
(g) exercise any other rights or remedies and/or take any
proceedings available to Lender hereunder, at law or in equity.
In lieu of selling, leasing or otherwise disposing of Equipment, Lender
may retain Equipment and cause Equipment to be valued by a qualified
appraiser selected by it and such value shall be substituted for and
deducted as net proceeds to Lender under subparagraph (f) of this
Section. Proceeds of sale, lease or disposal need be deducted only when
received, unless Lender elects to take the present value of payments to
be received, discounted at the Financing Rate then in effect, compounded
monthly.
15. LENDER'S RIGHTS TO REMEDY DEFAULTS
If Client fails to perform or comply with any Obligation, Lender may,
but has no obligation to, perform same in the name of Client or Lender
and make all necessary disbursements in connection therewith, which
shall be reimbursed by Client immediately on demand. Lender is hereby
appointed Client's lawful attorney to take any such action in Client's
name.
16. CLIENT'S GENERAL INDEMNITIES
Client shall indemnify and save harmless Lender from and against all
existing or future losses, costs, charges, expenses, liabilities,
claims, demands, penalties, damages, suits, actions and causes of action
of every nature and kind whatsoever, including strict liability in tort
or in delict (collectively, "Claims") sustained or suffered by Lender,
or for which Lender may become liable, resulting from or arising out of:
(a) Lender's lawful exercise or performance of its rights or
obligations under this Agreement;
(b) the holding by Lender of a security interest in the Equipment;
(c) any Default;
(d) any personal injury or property damage or other commercial loss
arising out of the sale or delivery to, installation, ownership,
use, operation, maintenance, condition, return, removal and
re-delivery of Equipment; or
(e) any use or operation of Equipment which infringes any patent or
other industrial or intellectual property right, unless caused
by the gross negligence or willful misconduct of Lender, its
employees, servants or agents.
17. ADMINISTRATIVE FEES AND EXPENSES
Client shall pay Lender on demand Lender's prevailing fees and all costs
and disbursements (including legal fees and expenses) certified by
Lender as having been incurred or made in connection with the
enforcement or preservation of any right or remedy arising on Default or
in connection with the rendering of financial services under this
Agreement including, without limitation, for processing of payments and
rendering statements to Client.
18. PRE-AUTHORIZED PAYMENTS
Client shall execute and deliver to Lender from time to time upon
request pre-authorized payment orders in such form as Lender may
reasonably request. Lender is hereby authorized to deliver such orders
to the financial institution named therein. Client hereby appoints
Lender its lawful attorney to take all action contemplated by such
payment orders to receive payment of any amount due under this
Agreement. Lender may decline any other form of payment.
19. LOCATION OF EQUIPMENT
19.1 Except as otherwise expressly permitted hereunder, Client shall not part
with possession of Equipment nor remove any of same from Canada.
19.2 Client covenants that Equipment will continue to be located where stated
on the face hereof, or at any other location agreed to in writing by
Lender.
20. ASSIGNMENT AND LEASING
Client shall not assign any rights hereunder and Client shall not sell
or attempt to sell Equipment nor lease or rent or attempt to lease or
rent Equipment, in any case without the prior consent of Lender, and
such consent may be withheld by Lender in its sole and unfettered
discretion. No action aforesaid by Client shall relieve Client of any of
its Obligations.
21. CLIENT'S GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Client represents and warrants to and covenants with Lender that: (a) if
Client is a body corporate, it is and will continue to be a body
corporate or other legal entity duly and validly incorporated or
otherwise established, organized and existing in good standing under the
laws of its jurisdiction of incorporation or establishment, with all
necessary power and authority to execute, deliver and perform this
Agreement; (b) if Client is a body corporate, all of the transactions
contemplated herein have been and will be duly authorized by all
necessary action, are not and will not be in conflict with the
constating documents or by-laws of Client or any indenture, instrument,
agreement or undertaking to which it is or will be a party or by which
it or its assets are or may become bound; (c) this Agreement is and will
continue to be the legal, valid and binding obligation of Client,
enforceable against it in accordance with its terms; d) all Information
as defined in Section 41 provided by Client to Lender is accurate; and
e) all payments to Lender are and will be derived from legal sources.
Client agrees to furnish to Lender a copy of its most recent annual
financial statements, audited if applicable, promptly upon availability
and in any event, within 90 days of each financial year-end. Upon
request by Lender, Client agrees also to furnish its quarterly financial
statements promptly upon availability and, in any event, within 60 days
of each financial quarter-end.
22. STATUTORY WAIVERS AND ACKNOWLEDGEMENT
22.1 Client waives its right to receive a copy of any financing statement or
financing change statement registered by Lender and of any related
verification statement.
22.2 Client waives, to the fullest extent permitted by law, the application
of the provisions of a) THE LIMITATION OF CIVIL Rights Act
(Saskatchewan); and b) THE DISTRESS ACT (Manitoba). Client agrees that
the provisions of this Agreement are commercially reasonable.
23. NO SET-OFF - EXCLUSION AND ASSIGNMENT OF WARRANTIES
23.1 CLIENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL EQUITIES AGAINST ANY
INSTALMENT AND OTHER AMOUNT DUE TO LENDER HEREUNDER AND AGREES TO PAY
EACH SUCH INSTALMENT AND OTHER AMOUNT WITHOUT REGARD TO ANY EQUITIES.
NEITHER DEFECTS IN, DAMAGE TO, NOR LOSS OR DESTRUCTION OF EQUIPMENT
SHALL TERMINATE THIS AGREEMENT OR REDUCE CLIENT'S OBLIGATIONS HEREUNDER,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN.
23.2 CLIENT REPRESENTS AND WARRANTS TO AND COVENANTS WITH LENDER THAT
EQUIPMENT IS AND WILL BE USED FOR COMMERCIAL, INDUSTRIAL OR BUSINESS
PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD OR FARMING
PURPOSES;
23.3 (A) LENDER SHALL NOT BE BOUND BY OR BE DEEMED TO HAVE MADE OR BE LIABLE
FOR ANY REPRESENTATION, WARRANTY OR PROMISE MADE BY SUPPLIER OR
OTHERWISE; (B) LENDER SHALL NOT BE LIABLE FOR ANY FAILURE OF EQUIPMENT
INCLUDING ANY LATENT DEFECT OR ALLEGED FUNDAMENTAL BREACH OF THIS
AGREEMENT; (C) NEITHER LENDER NOR ANY OF ITS EMPLOYEES, SERVANTS OR
AGENTS HAS MADE AND DOES NOT NOW MAKE ANY REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO EQUIPMENT OR ANY
INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS THEREIN INCLUDING, WITHOUT
LIMITATION, THE DESIGN, SPECIFICATIONS, CONDITION, QUALITY,
MERCHANTABILITY OR FITNESS FOR CLIENT'S PURPOSES AND (D) LENDER SHALL
HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL
OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, ACTUAL OR ANTICIPATED, OR
FOR ANY DAMAGES BASED ON STRICT OR ABSOLUTE TORT OR DELICTUAL LIABILITY
OR LENDER'S OR SUPPLIER'S NEGLIGENCE. NOTHING HEREIN SHALL DEPRIVE
CLIENT OF ITS RIGHTS AGAINST SUPPLIER OR ANY PERSON OTHER THAN LENDER.
CLIENT SHALL MAKE ANY CLAIMS WITH RESPECT TO EQUIPMENT DIRECTLY AGAINST
SUPPLIER.
23.4 IF EQUIPMENT IS SEIZED OR SOLD BY LENDER, ALL WARRANTIES OF SUPPLIER AND
RIGHTS TO ALL SOFTWARE, OTHER INTELLECTUAL AND INDUSTRIAL PROPERTY
LICENSES ACCOMPANYING GOODS SHALL BE DEEMED ASSIGNED BY CLIENT TO
LENDER.
24. NOTICES
Any notice, demand, consent or other communication required or permitted
hereunder ("Notice") shall be in writing and may be delivered, or sent
by prepaid registered mail, or by telex, telecopier or other means which
produces a permanent written record (a "transmission"). Mailed Notice
shall be deemed to have been given two business days after mailing
provided there is no general disruption or stoppage of postal services
then in effect, in which case delivery shall be made by one of the other
methods permitted herein; delivered Notice shall be effective upon
delivery during business hours to an apparently responsible adult, and
transmissions shall be deemed to have been received at the opening of
the business day immediately following transmission. Addresses for
Notice shall be those addresses stated on the face hereof and may be
changed in accordance with the foregoing.
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25. REMEDIES CUMULATIVE
All rights and remedies of Lender hereunder are cumulative and not
exclusive or alternative and may be exercised by Lender separately or
together, in any order, sequence or combination.
26. FORBEARANCE, INDULGENCE AND WAIVERS
Forbearance or indulgence by Lender in any instance shall not constitute
a general waiver of the obligation under this Agreement to which the
same applies. Any waiver by Lender of its rights must be in writing and
shall not extend to any other obligation or right.
27. ALLOCATIONS
Client hereby irrevocably and unconditionally waives any present or
future right to allocate any payment made to Lender to any specific
Obligation due under this Agreement or under any other agreement with
Lender or any affiliate of Lender. Lender may allocate and apply any
payment received to any Obligation due hereunder or under any other
agreement with Lender or affiliate of Lender and may reverse, reallocate
and re-apply any such payment as many times and in such manners as
Lender from time to time sees fit. Payments received shall be allocated
upon receipt of legal tender or cleared funds. Lender is hereby
irrevocably authorized to combine and set off amounts payable by it to
Client with amounts owing to it from Client (in each case whether
matured or not and whether absolute or contingent) under the same or
different agreements.
28. TIME
Time is and shall remain of the essence of this Agreement.
29. ENTIRE AGREEMENT
29.1 There are no representations, warranties, covenants, agreements or
acknowledgements by Lender affecting the Financed Amount, the
Obligations, the Accrued Liability, this Agreement or Equipment, other
than expressed in this Agreement.
29.2 No agreement purporting to amend or modify this Agreement or any other
document, paper or writing relating hereto or to Equipment or connected
herewith shall be binding unless in writing signed by the parties
hereto.
30. SEVERABILITY
Any term, condition or provision of this Agreement which is deemed to be
void, prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be severed herefrom and ineffective to the extent of such
invalidity, prohibition or unenforceability, without in any way
invalidating the balance hereof.
31. NO MERGER IN JUDGMENT
The taking of any judgment by Lender under this Agreement shall not
operate as a merger or novation of any term or condition hereof or of
any obligation of Client or Lender hereunder.
32. FURTHER ASSURANCES AND POWER OF ATTORNEY
32.1 Client and Lender each shall do, execute and perform all such acts,
deeds, documents and things as may be reasonably required to enable
Lender to have the full benefit of all rights and remedies intended to
be reserved or created hereby. Lender is hereby appointed Client's
lawful attorney to complete and/or correct any information on the face
hereof or in any Schedule hereto.
32.2 Each power of attorney granted in this Agreement is granted with full
power of substitution, is irrevocable, is coupled with an interest,
shall survive termination of this Agreement and may be exercised during
any subsequent legal incapacity of Client or Lender.
33. CURRENCY
Unless otherwise stated in this Agreement, all sums of money payable
hereunder shall be paid in Canadian dollars.
34. SURVIVAL
Notwithstanding any other Section, any accrued Obligations, the
Obligations of Client under Sections 9.4, 10, 15, 16, 17, 22 and 27 and
all rights of Lender hereunder, whether accrued or not, shall survive
the termination or expiration of this Agreement and the payment of the
Accrued Liability and all other amounts payable hereunder.
35. SECTION HEADINGS
Section headings in this Agreement are for convenience of reference only
and do not affect the interpretation or construction hereof.
36. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon Lender
and Client, their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns and lessees. Lender
may assign or transfer in whole or in part its rights under this
Agreement or Equipment, and/or Pledge its rights hereunder or in
Equipment and any assignee, transferee or beneficiary of such Pledge
("Assignee") shall be unrestricted in the exercise of such rights.
Client shall recognize any such assignment, transfer or Pledge and shall
not assert against any Assignee any Claims or Equities which it may have
against Lender respecting this Agreement or Equipment and waives all
Claims and Equities against Assignee's rights to enforce this Agreement
based on Lender's alleged failure to perform same or Supplier's breach
of Warranties. Client shall not be entitled to assign its rights or
obligations hereunder.
37. CHOICE OF LAW
This Agreement shall be governed, construed, performed and enforced in
accordance with the laws of the Province where the address of Client is
located as stated on the face of this Agreement.
38. LANGUAGE
The parties hereto have expressly required that this Agreement and all
documents, agreements and notices related thereto be drafted in the
English language. Les parties aux presentes ont expressement exige que
le present contrat et tous les autres documents, conventions ou avis qui
y sont afferents soient rediges en langue anglaise.
39. JOINT AND SEVERAL LIABILITY
If more than one person executes this Agreement as Client their
obligations hereunder shall be joint and several and, where the context
so admits, each reference in this Agreement to "Client" shall include
reference to any one or more or all such persons and the acts or
omissions of and such persons shall bind all of them.
40. RECEIPT OF AGREEMENT
Client acknowledges receipt of an executed copy of this Agreement.
41. INFORMATION
Client hereby consents and authorizes Lender and its affiliates, agents,
contractors and representatives, at any time, a) to collect, verify,
use, communicate with and disclose to third parties (including credit
reporting agencies, financial institutions, creditors, vendors and other
persons) any credit, financial and other information, including personal
information (as applicable) and information related to the credit
rating, financial capacity and payment history, with respect to Client
("Information"), as Lender deems necessary to process, complete, service
and enforce the transactions hereby contemplated and any other existing
or potential transactions, or as required or otherwise permitted by law;
b) to respond to inquiries from, and exchange any Information with,
third parties concerning Client's credit rating, financial capacity and
payment history; c) to provide Information to persons to whom Lender
considers assigning, granting a participation or otherwise disposing of
rights or obligations under the transactions hereby contemplated; and d)
to provide to any person copies of this Agreement. This consent is in
addition to and does not replace any consent previously given.
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